State ex rel. Gilkeson v. Humbird

Robinson, J., delivered the opinion of the Court. This is- a suit upon the administration bond of Richard M. Sprigg. In the body of the bond, it purports to be signed and sealed by Richard M. Sprigg, Alfred Spates, J. H. Long and John Humbird. It is signed by all these parties, and there is a seal opposite to each of the signatures of Richard M. Sprigg, Alfred Spates and J. H. Long, but there is no seal opposite to or in any manner attached to the signature of the appellee, Humbird.

And the question is whether the plea of non est factum by him is a good plea ? A seal is essential to a deed or specialty, although it is not necessary that every one signing a deed should have a separate seal, nor is it necessary there should be as many seals as signatures. One may authorize another to sign and seal a deed in his behalf, or he may sign it and adopt the seal of one of the parties. In order, therefore, to support this action, it must appear that the bond in question, was sealed by the ³³⁰ appellee, Humbird, or by some one acting in bis behalf and by his authority, or that he adopted the seal of one of the other contracting parties.

Neither the words “ signed and sealed with our seals,” in the body of the bond, nor the words “ signed, sealed and delivered in presence of,” just above the signatures of the attesting witnesses, are sufficient to constitute the instrument, the deed or specialty of one who does not in fact seal the instrument. This was expressly decided in Stabler vs. Cowman, 7 G. & J., 284 . Ordinarily each party affixes a seal opposite to his signature, and in the absence of proof to the contrary, the instrument will be held to be the deed of the parties only, to the signatures of whom seals are attached, or in some manner connected. Now in this case, there are seals opposite to the signatures of all the contracting parties, except that of the appellee, Humbird; there is no seal opposite to or in any manner attached to his signature, nor is there any evidence to show that at the time of signing the