Magill v. Hinsdale

6 Conn. 464 | Conn. | 1827

Peters, J.

1. As the charter of the Middletown Manufacturing Company, is a private statute, and not before us, the construction and extent of its provisions must be laid out of consideration. As they owned the land in question, they of course had power to mortgage it. Have they delegated this power to the plaintiff? This seems to be admitted. Has he executed this power? This is denied, because he executed the deed in his own name, and not in the name of the corporation.

2. It is a general rule, that a tenant cannot deny the title of his landlord. Merwin & al. v. Camp & al. 3 Conn. Rep. 35. But the defendants have not done or attempted such an act. They had merely attorned to their lord paramount. If the legal estate passed to the bank, by the mortgage executed by the plaintiff, he acquired the equity of redemption only, by the levy of his execution. His tenants were liable to be treated as tort-feasors; which they might lawfully avoid, by submission to the claim of the mortgagee. Rockwell & al. v. Bradley, 2 Conn. Rep. 1. Wakeman & al. v. Banks, 2 Conn. Rep. 445. In Jones v. Clark & al. 20 Johns. Rep. 51. it was decided, by the supreme court of New-York, that the tenant of a mortgagor in possession, after the mortgage has become forfeited, during the continuance of the lease from the mortgagor, may attorn to and take a lease from the mortgagee; and in an action brought against him, by the mortgagor, for rent, under his lease, he may set up such attorment as a legal defence. The same point was decided, by the Chief Justice, in Atwater v. Eaton, New-Haven,in. August, 1825.

3. No particular form of words is necessary for an agent to bind his principal, if he expresses in the instrument the capacity in which he acts. Deeds are to receive a construction from the whole taken together ; and every deed ought to be so construed as to effect the intention of the parties, ut res magis valeat quam pereat. Wilks & al. v. Back, 2 East, 142. In Hovey v. Magill, 2 Conn. Rep. 680. 682. Swift Ch. J., delivering the opinion of the Court, remarks, that no precise form of words is required to be used ; that every word must have effect, if possible ; and that the intention must be collected from the whole instrument taken together. Who can entertain a doubt, upon reading the deed in question, that it was the intention of the plaintiff to bind the company ? In Combe's case, 9 Rep. 75. 77. it was resolved, that when any has authority to do any act, he ought to do it in his name who gives the authority. But where it was objected, that the attornies had made the surrender in their own names; for the entry was Quod iidem Willielmus et Stephanus, &c. sursum reddiderunt, &c. it was answered, and resolved per totam curiam, that they had well pursued their authority : for first, they shewed their letter of attorney; and then, authoritate eis per pradictam literam at-tornatus datum sursum reddiderunt, &c. which is as much as to say, “We, as attornies of Thomas Combes, surrender,” &c. ; and both these ways are sufficient; as he who has a letter of attorney to deliver seisin, saith, “I, as attorney to J. S. deliver you seisin or “ I, by force of a letter of attorney, deliver you seisin and all that is well done. In Stinckfield v. Little, 1 Greenl. 231. it was said, by the supreme court of Maine, that where a contract is entered into, or a deed executed, in behalf of the government. by a duly authorized public agent, and the fact so appears, notwithstanding the agent may have affixed his own name and seal, it is the contract or deed of the government who alone is responsible. But they add, the same rule does not obtain in relation to the agent of an individual or a corporation. But I perceive no reason for this distinction.And the supreme court of New-York, in Rathbone v. Budlong, 15 Johns. Rep. 1. expressly say, that in fact there is no difference between the agent of an individual and of the government. Upon this point, this case is not distinguishable from the case of Hovey v. Magill, 2 Conn. Rep. 680. wherein this plaintiff executed a promissory note, in the same manner, for the same principal; and this Court held, that the principal was bound, and not the agent. I am, therefore, of opinion, that there ought not to be a new trial.

Brainard, Lanman and Daggett, Js. were of the same opinion. Hosmer, Ch. J. gave no opinion, being related to one of the parties.

New trial not to be granted.