22 N.J.L. 311 | N.J. | 1850
delivered the opinion of the court.
The general principle, that an action of covenant can only he sustained where the instrument upon which the action is brought has been actually signed and sealed by the party, or by his authority, is abundantly sustained by the authorities cited by the counsel of the defendant. There are, however, exceptions, of which actions upon the custom of London, actions against the king’s lessee by patent, and against remainder men, are admitted instances.
The only inquiry is, whether an indenture of bargain and sale, purporting to be inter partes, by which an estate is conveyed to the grantee, if the grantee accept the deed, and the estate therein conveyed, though the indenture be not sealed and delivered by him, is not his deed, as well as the deed of the grantor.
The affirmative of the proposition is sustained by the following authorities, cited, with many others, in the brief of the plaintiff’s counsel: Co. Lit. 231, a, 230, C, note 1 ; Sheppard’s Touch. 177; 4 Cruise Dig. 393, “Deed,” Tit. 32, c. 25, § 4; 3 Corn. Dig., “Covenant,” A 1, “Fait,” A 2, C 2; Vin. A. C. “ Condition,” I, a 2 ; Burnett v. Lynch, 5 Barn. & Cress. 589; Dyer 13, C. pl. 66.
A modern elementary writer, of high reputation, denies the doctrine deduced from these cases, and insists that the action of covenant, unless it be founded on the custom of London, or on a contract between the king and a subject, can ever be supported against a person who by himself, or some other person acting on his behalf, has executed a deed under seal. Platt on Covenants 18.
He admits, however, that the contrary doctrine has been received without scruple by the profession, has been adopted by writers distinguished for their legal attainments, and that, perhaps, it has been too long established to be now reversed. There is, in our judgment, no reason why the doctrine should be reversed.
The rule to show cause must be discharged.
Cited in Patten v. Heustis, 2 Dutch. 296; Earle v. New Brunswick, 9 Vr. 52; Harrison v. Preeland, Id. 367; Klapworth v. Dressler, 2 Beas. 63; Hauler’s Ex. v. Atwood, 11 C. E. Gr. 505; Crowell v. Hospital of St. Barnabas, 12 C. E. Gr. 652.