M'Kee v. Hicks, 13 N.C. 379, 2 Dev. 379 (1830)

June 1830 · Supreme Court of North Carolina

13 N.C. 379, 2 Dev. 379

Robert M’Kee v. Thomas Hicks,

From Caswell.

A deed must be perfect in all respects before its delivery. Where a blank was left in a bond for money, to be filled up when the sum was ascertained, and after the delivery the blank was fairly filled up by a stranger, — held, that the instrument was void.

Held also, that a subsequent payment oh the bond, or a subsequent delivery, would not validate it, unless so intended.

Debt upon a single bill executed by the Defendant as the surety of one John Campbell, payable to the Plaintiff. Upon the plea of non est factum, the Defendant proved that he signed and sealed the bond in blank — that lie delivered it to a son of Campbell, who carried it to the Plaintiff, and after agreeing upon the amount of the loan, fill- d up the blank with that sum. — Campbell shortly afterwards died insolvent, and tiie Defendant went to the Plaintiff, and asked him to look at the bond — he took it in his hand and handed it back to the Plaintiff — -and on the same day, said he had been to learn the amount of his bond, and to obtain indulgence as to tbe time of payment.

His Honor Judge Norwood charged the Jury, that to the valid execution of a bond, it was necessary it should be fuiiy written and filled op before it was signed, sealed and delivered — that if the Defendant had signed, sealed, and delivered the paper, as his act and deed, with a blank therein to be filled up with the amount of the sum to be advanced by the Plaintiff, and the blank was afterwards so filled up, it would not be the deed of the Defendant— unless the person filling up the blank, on delivering the paper, had, at the time of the delivery, authority under the hand and seal of the Defendant to do so. And further, that if the paper was not the deed of the Defendant at the delivery of it to the Plaintiff, the Defendant, by speaking of it as his bond, or paying a part of the sum intended to be secured thereby, did not give it validity 5 and the redelivery of it by the Defendant to the Plaintiff, as proved, would not, in law, make it the deed of the former, unless he intended to make it his deed at the time he returned it to the Plaintiff.

June, 1830.

A verdict was returned for the Defendant, and the Plaintiff appealed.

No Counsel appeared for either party in this Court.

Hall, Judge.

The opinion of the Judge of the. Superior Court, on the question raised in this case, is so full and so correct, that with all the deliberation with which it is our duty to examine it, nothing can be added. We therefore think the rule for a new trial should be discharged. Whatever injustice may be done to the Plaintiff in this rase, is attributable to his own oversight in taking a security for his debt, which the law cannot recognise as a legal one. If an instrument with a seal to it is not completely executed by signing, sealing and delivering, it cannot heroine more so by any art of an unauthorized agent. It would be dangerous if the law were otherwise. Suppose the son of Mr. Campbell, or any other unauthorized agent had filled up the bond with ten times the sum actually borrowed ; it would be thought a great hardship upon the obligors. And so it would he^ if they were compelled to pay it.

Per Curiam. — Let the judgment of the Court below be affirmed,