SEPTEMBER TERM, *1750.*

Lib. E. J. No. 13. fol. *309.*

#### Stephen Onion’s Lessee *against*John Hall.

EJECTMENT for a tract of land called *Anne's De*light, lying in *Baltimore*County.

At the trial of this cause, the Jury found by their special, verdict, That *Henry Wriothesly*was seised in fee-, by virtue *174of a patent from the Lord Proprietary, dated the 24th of *April, 1701,*for the land in question; and being so seised, he devised it in fee to his wife *Anne.*That the said *Anne*residing in *Baltimore*County, and being seised by virtue of the devise, made her power of attorney, bearing date the 25th of August, 1713, to *Roger*Mathews, of the same County, empowering him to alienate, sell, “ and make *“*over all or any part of her land or lands, which she then “ held within? the Province, and to execute, acknowledge, “ sign, seal, and deliver, for her and in her name, all such “ deeds, conveyances and assurances, as are needful and “ necessary in the law for the selling and making over the u land unto any person or persons whatsoever, her said st attorney shall sell unto.” Which power of attorney was executed in the presence of two witnesses, and by one of them proved, before a Justice of the Peace, to be the act and deed of the said Anne, and was recorded among the *Baltimore*County records. That the said *Anne,*by deed indented and enrolled, conveyed the land in dispute to *William Brawn,*of *Cecil*County, merchant, in fee, which deed is in the following style: “ This indenture, made “ this 29th of September, 1713, between *Anne Wriothesly,*“ of *Baltimore*County, widow, of the one part, and *Wil'l Ham Brovm,*&c. of the other part, Witnesseth, That the “ said *Anne,*in consideration of 80/. doth bargain, sell, &c. <c to the said *Brown f*&c. in the usual form, and signed “ Roger. Mathews, *Attorney in fact for the said*Anne “ Wriothesly.” And then follows the seal. And was acknowledged in the following form: “ On the 29th day “ of *September,*1713, came *Roger Mathews,*the lawful “ attorney of the within named *Anne Wriothesly,*before “ us, two of her Majesty’s Justices of *Balti7nore*County, “ and acknowledged the within deed unto the said *William*“ Brown, his heirs, executors, and administrators or as- “ signs, on part and behalf of the said *Anne Wriothesly.”*Signed by the two Justices. That *William Brozvn*devised the land .so conveyed to him to be sold by his executrix, *175and by his will nominated and appointed *Hester*Brown, his wife, sole executrix. That *Hester Brown,*at his death, became seised, and conveyed the same to *Hannah Johns*In fee, who afterwards married *John Hall,*the defendant. -That the defendant and his wife entered into.the land in question about the 5th of August, 1732, and have been actually seised thereof till the bringing of the suit.

.. It was further found, that *Anne Wriothesly,*to whom the .land was devised by *Henry*Wriothesly, her father, about the year 1720,' died seised of the land in question, without heirs and intestate, and so became liable to escheat, unless the conveyance made by *Roger Mathews*as her attorney, divested her of the estate. That on the 15th *January,*1745, an escheat patent was granted by the Lord Proprietary to *Stephen*Onion, the plaintiff in this cause, for the land for which this ejectment was brought. •

The Court gave judgment for the defendant, and the plaintiff appealed to the Court of Appeals.(a)

*176J*"- *Chase,*for the defendant.

(a)

 In the case of *Robert Goodloe Harper*v. *Wade Hampton,*tried in the General Court at *October*Term, 1804, the plaintiff offered in evidence a deed from *Robert G. Harper*to *John Hall,*executed by virtue of a power of attorney from *Jacob Rumph*to *Robert G. Harper.*The deed, after reciting the power of attorney, was of the tenor following in the granting part of it: *“ Robert G. Harper,*for and as attorney for *"*the said *Jacob Rumph,*and in pursuance of the above mentioned « power of attorney, hath granted, released and confirmed, and doth “ grant,” &c. and the deed is signed and sealed by *“ Robert G.*Harper» attorney for *Jacob*Rumph-”

The defendant’s counsel, *William Pinckney,*objected, that the deed was not valid and operative to pass the lands intended to be conveyed by it, because the attorney did not pursue his authority.

And the Court (J. T. Chase, Ch.,J. and R. Sprigg, one of the associates, being on the bench) .were of opinion, that the deed was not valid and operative, inasmuch as the authority had not been pursued, it being the deed of the attorney and not of the principal, not being in the name of the principal in the granting part. They relied upon the case of *Frontín*v/ *Small,*Ld. *Raym,*1418. and the case of *Wilks*v. *Back,*2 *East,*142. in which case, they said, the doctrine in the case of *Frontín*v, Small, that the attorney must execute the deed in the name of the *176principal, and not in his own name, was acceded to by the Court. That in the case in *East,*the only question was on the signature. *Brown*was named as an obligor in' the bond, and *Wills*was empowered to sign, seal and deliver the bond for him, and he did sign, seal and deliver the bond for *Brown,-*but in signing the attorney put his own name first, *“ Wills for Brown,-”*and the Court determined it to be the signature of *Brown,*and that the manner of placing the names made no difference, which was the only question before the Court.

This case is still pending in the Court of Appeals, and will be reported hereafter at full length.

The great objections in this case were, that lands will not pass by letters of attorney; or if they do pass, the deed is not well executed according to the act of Assembly.

That the first objection is a mistake, and contrary to law, see 1 *Leon.*184. 1 *Roll. Abr. 328.*to deliver a lease.*Brownl.*93. 1 *Salk.*96. *Parker*v. *Kett. 2 Roll. Abr.*8. 9 *Co.*76. a. *Combe’s*case, full and strong to the point.

As to the second. Our act of Assembly (1715, ch. 47.) is not destructive of the common law, but is only introductive of a new method of law; for the common law cannot be done away or altered but by positive and negative Words.

There is a recording at the common law, *pro salva*cus*toclice,*(not under the statute of enrolments,) 1 *Salk.*389. *Taylor*v. *Jones.*And where a deed was enrolled without the examination of the party, upon proof by a witness that the party delivered it, *Godb. 270.*Where the party died before the acknowledgment, the deed notwithstanding was enrolled. 3 *Leon.*84. And it is the practice, if a man lives in New-England, and would pass lands in *England,*to join a mere nominal party in the deed, with him who acknowledges it, and it binds. 1 *Salk.*389. *Cro. Eliz.*717. *jDyer, 220. 2 Inst.*674.

It is said, that, under the act of Assembly, the acknowledgment is a *personal*act. It is by no means so. The *177very law itself is contrary to that idea, inasmuch as it gives a power to an attorney to acknowledge a deed. However, every act a man can do himself, he may in law do it by another or by his attoniey, except taking an oath, doing fealty, or paying homage. *§>ui facit per alterum facit per se.*9 *Co.*76. *Combés*case.

Then it was objected, that the power was not well pursued. For the execution of powers, see 1 Salk. 280. 389. 96. *Moore,*70. *Comb.*248. 2 *Fern.*471. 474. *Godb.*270. *1 Leon.*84. 9 *Co. 75. Combés*case, as to pursuing the authority, and when it is well pursued. A power may be well executed, though there be no recital of the power in the deed made for the execution thereof. 1 Lev. 150, 151. 2 Lilly, 341. And if a deed will not pass lands unless by virtue of the power of attorney, it shall pass by virtue of the power, *ut res magis valeat qitam pereat.*6 *Co.*18. Sir *Edw. Cleere's*case. 1 *Salk.*95, 96. The deputy’s power ceases in the presence of the principal. 1 *Salk.*95, 96. *Parker*v. *Kelt.*8 *Mod.*365. As to the attorney exceeding his authority, see *Co. Litt.*52. A deed by attorney is good, though there be no recital of the power, and the principal be not named as a party. 1 *Lev. 150. Jenkins*v. *Keynis.*Where there was a power to several, and deed executed by one only. 2 *Roll. Ahr.*328, 329. 11 *Co.*92. 5 *Co.*91. *Hoe's*case. Where a power decreed, well executed, though not strictly pursued. *Chan-Rep.*263, 264, 265. Where a deed is executed in tire name of the person empowering, how such deed should be executed. 9 *Co.*76. a. 3 *Lev.*138, 139. 2 *Ray.*425. 1 *Ray.*659. 11 *Rep.*87. 3 *Horseman's Conv. 7.*2 *Lil*ly, 425. The power must be executed strictly. 6 *Rep.*33. a. Powers must be construed according to the intent of parties. 5 *Mod.*378. *Winter*v. *Doveday.*If the substance be performed, the circumstances need not be regarded, for ciixumstances are only annexed to powers to prevent fraud. *Luc.*466, 467, 468. *2 Chan. Rep.*29. They are good, though improperly executed, forjudges are said *178to be *astuti*to do right. Forms need not be expressed. *Luc. 72. Mob. 312.*That a deed by attorney is supported, though not formally executed, and though executed in the attorney’s own name, besides the authorities supra, 1 *Ray.*659, 660. *Parker*v. *Kett.*Feoffment by an attorney is good. So an attorney may take or give a feoffment or livery, *2 Roll. Abr.*8. Where an authority is given by one *■deed*to many, they must all join in the execution of the power. Contra, where an authority is given by will. 1 *Leon.*60. ca. 78. Executors may sell, and in their own name. 1 *Roll. Abr.*330. tit. *Authority.*9 *Co.*77. a. *Combe's*■case. 1 *Dam.*669. They may sell by statute. 21 *H.*VIII. c. 4. 1 *Inst.*113. a. 236. a.

The plaintiff sets up two titles; the one under a purchase which they give up, the other under an escheat, under *Anne*Wriothesly, wife and devisee of the patentee, who it is said died intestate, without heirs; or any disposal, endeavouring to make the sale by *Roger*Mathews, her attorney, void. If that is not good, the land is escheat. But that deed is good, both in law and in equity, and being so, destroys the plaintiff’s title. The deed was by the Provincial Court adjudged to be good, and the plaintiff appealed. - Lands passing by power of attorney, see *Mod.*28. *Gould,*92. *Bract.*13.

At *February*Term, 1753, *E. Dorsey*and *D.*Dulany, junior, being counsel for the appellant, and A. *Bordley*for the appellee, the Court of Appeals affirmed the judgment of the Provincial Court.

*179APRIL TERM, 1750.

RULED, That the following clause be inserted in all warrants of resurvey after the words, “ without any inter- “ ruption of him the said defendant,” to wit 2

“ Or if absent, notice to be left at his place of residence, “ 6r last place of abode.”