398 and

cided that an acceptance by the grantee is necessary, occasionally it is said that, while an acceptance may be presumed in ordinary cases, this is not so if the conveyance is subject to a condition, or otherwise imposes an obligation upon the grantee.399 399 Sometimes, when it is said that an acceptance will be presumed, it is difficult to determine wheth er this means that there is a conclusive presumption to this effect, or that there is a presumption which may be overthrown by evidence that the grantee had no knowledge of the instrument, or that he failed to indicate his acquiescence therein. The theory that an actual acceptance is necessary involves almost insuperable difficulties when the grantee is

398 Welch v. Sackett, 12 Wis. 243, 3 Gray's Cas. 714; Oxnard v. Blake, 45 Me. 602; Jackson v. Phipps, 12 Johns. (N. Y.) 418, 3 Gray's Cas. 671; Hulick v. Scovil, 9 Ill. 159; Cravens v. Rossiter, 116 Mo. 338, 38 Am. St. Rep. 606; Watson v. Hillman, 57 Mich. 607; Meigs v. Dexter, 172 Mass. 217; Stallings v. Newton, 110 Ga. 875; Alexander v. De Kermel, 81 Ky. 345; Knox v. Clark (Colo. App.) 62 Pac. 334; Woodbury v. Fisher, 20 Ind. 387, 83 Am. Dec. 325; Hibberd v. Smith, 67 Cal. 547, 56 Am. Rep. 726; Kempner v. Rosenthal, 81 Tex. 12; Tuttle v. Turner, 28 Tex. 759, Finch's Cas. 1088; Day v. Griffith, 15 Iowa, 104; Wiggins v. Lusk, 12 Ill. 132; Moore v. Flynn, 135 Ill. 74; Bell v. Farmer's Bank of Kentucky, 11 Bush (Ky.) 34, 21 Am. Rep. 205.

This view is apparently based, to a great extent, upon the theory that a conveyance is a contract, which it is not, though frequently it results from a contract. Title passes under a devise without the knowledge or consent of the devisee, and there seems no reason why it should not do so in the case of a conveyance inter vivos. There are difficulties in the application of the common-law rule, as is well shown in Welch v. Sackett, 12 Wis. 270, 3 Gray's Cas. 714, in case the grantee subsequently refuses to take the property, but the same is true in the case of an unaccepted devise. The fact that the rule requiring an acceptance breaks down utterly in the case of a conveyance to a person not sui juris is sufficient in itself to raise doubts as to its soundness when applied in other cases.

399 Derry Bank v. Webster, 44 N. H. 264, 3 Gray's Cas. 723; Jackson v. Bodle, 20 Johns. (N. Y.) 184; Elsberry v. Boykin, 65 Ala 336; Johnson v. Farley, 45 N. H. 505; Hibberd v. Smith, 67 Cal. 547. See Mitchell's Lessee v. Ryan, 3 Ohio St. 377, 3 Gray's Cas. 691.

an infant or an insane person, and in such cases the courts invariably, it seems, presume an acceptance,400 or, in other words, adopt the common-law rule.

The cases requiring the acceptance of a conveyance do not regard such acceptance as a part of the delivery, but hold that it may take place at any subsequent time, even after the death of the grantor, the title remaining, until such acceptance, in the latter, or, presumably, in his heirs or devisees.

§ 408. Execution by agent.

In discussing the subject of those proprietary rights known as "powers," reference was made, for the purpose of distinguishing them, to powers of agency, which are not proprietary rights enforceable against the whole world, but are merely rights of representation, usually based on a contract between the donor and donee of the power, that is, the principal and the agent, and which are of no effect as regards third persons until the agent acts under the power. Such a power of agency enters into the subject of the transfer of land by reason of the fact that the owner of land may transfer it, not only by himself executing the instrument of transfer, but also by empowering another to do so in his absence. Such a power or authority, given to another to transfer land, must, so far, at least, as the conveyance is required to be under seal, be itself under seal,401 and it is, as are other

400 Davis v. Garrett, 91 Tenn. 147; Parker v. Salmons, 101 Ga. 160; Miller v. Meers, 155 Ill. 284, Finch's Cas. 1085; Winterbottom v. Pat tisor 152 Ill. 334; Tobin v. Bass, 85 Mo. 654, 55 Am. Rep. 392; Eastham v. Powell, 51 Ark. 530; Campbell v. Kuhn, 45 Mich. 513, 40 Am. Rep. 479; Bjmerland v. Eley, 15 Wash. 101; Sneathen v. Sneathen, 104 Mo. 201, 24 Am. St. Rep. 326.

401 Huffcut, Agency (2d Ed.) 37; Montgomery v. Dorion, 6 N. H. 250; Heath v. Nutter, 50 Me. 378; Cadell v. Allen, 99 N. C. 542; Shuetze v. Bailey, 40 Mo. 69; Blood v. Goodrich, 9 Wend. (N. Y.) 68, 24 Am. Dec. 121. There are statutes to the same effect in many states. 1 Stimson's Am. St. Law, § 1670.

[Ch. 19 authorities under seal, usually known as a "power of attorney." Such an execution of a conveyance by an agent must be distinguished from the cases before referred to, in which the manual signing of the instrument by the hand of another is adopted by the grantor as his own act, this being for all purposes his own signature.

According to some decisions, the signature of a conveyance. by an attorney or agent must be in the name of the principal, the form "A. by B." thus being correct, and "B. for A.” being incorrect. 402 But by the more modern decisions this strictness of view is relaxed, and it is generally regarded as sufficient if it appears from either the signature or from the instrument as a whole that the instrument is the deed, not of the agent, but of the principal;403 and in some states there is a statutory provision to this effect.404 The fact that the name of the agent himself does not appear in the signature does not affect the validity of the execution. 405 A conveyance which fails at law, because its execution is by the agent in his own name, instead of in that of his principal, will be sustained in equity as an agreement to convey, and, as such, will be effective, not only between the parties, but as against subsequent purchasers with notice.406

402 Combe's Case, 9 Coke, 75; 2 Kent's Comm. 631; Fowler v. Shearer, 7 Mass. 14; Elwell v. Shaw, 16 Mass. 42, 8 Am. Dec. 126; Stinchfield v. Little, 1 Me. 231, 10 Am. Dec. 65; Carter v. Chaudron, 21 Ala. 72; Stone v. Wood, 7 Cow. (N. Y.) 453, 17 Am. Dec. 529; Morrison v. Bowman, 29 Cal. 337; Clarke's Lessee v. Courtney, 5 Pet. (U. S.) 318, 349; Townsend v. Corning, 23 Wend. (N. Y.) 442.

403 Shanks v. Lancaster, 5 Grat. (Va.) 110, 50 Am. Dec. 108; McClure v. Herring, 70 Mo. 18; Doe d. Tenant v. Roe, 27 Ga. 418; Hale v. Woods, 10 N. H. 471; Magill v. Hinsdale, 6 Conn. 464a; Rogers v. Bracken's Adm'r, 15 Tex. 564; Bigelow v. Livingston, 28 Minn. 57; Heffernan v. Addams, 7 Watts (Pa.) 116.

404 1 Stimson's Am. St. Law, § 1675.

405 Forsyth v. Day, 41 Me. 382; Berkey v. Judd, 22 Minn. 287; Devinney v. Reynolds, 1 Watts & S. (Pa.) 328.

406 Wilkinson v. Getty, 13 Iowa, 157, 81 Am. Dec. 428; Love v.

A married woman has power to transfer her rights in land only in the mode named by statute, and consequently, in the absence of express statutory authority, or a declaration that she may transfer her separate estate as if she were sole, she cannot execute the conveyance by an agent or attorney, and, if so executed, it will, as against her, be void both at law and in equity.407

Authority to an agent to execute a conveyance for one involves authority in him to acknowledge the instrument for any of the purposes for which an acknowledgment is necessary or proper. 408

Sierra Nevada Lake Water & Min. Co., 32 Cal. 639, 91 Am. Dec. 602; Ramage v. Ramage, 27 S. C. 39; McCaleb v. Pradat, 25 Miss. 257. See Stark v. Starr, 94 U. S. 477.

407 Wilkinson v. Getty, 13 Iowa, 157; Earle's Adm'rs v. Earle, 20 N. J. Law, 347; Dentzel v. Waldie, 30 Cal. 138; Holland v. Moon, 39 Ark. 120; Waddell v. Weaver's Adm'rs, 42 Ala. 293; Randall v. Kreiger, 23 Wall. (U. S.) 137; Mexia v. Oliver, 148 U. S. 664.

408 Robinson v. Mauldin, 11 Ala. 977; Basshor v. Stewart, 54 Md. 376; Bigelow v. Livingston, 28 Minn. 57; Richmond v. Voorhees, 10 Wash. 316. But see Gosselin v. City of Chicago, 103 Ill. 623.

(939)

Any interests in land may be transferred by will, but, apart from specific statutes to that effect, real property not owned by the testator at the time of making the will cannot pass thereunder. Statutes now exist in most, if not all, jurisdictions, allowing one to dispose of real property afterwards to be acquired by him.

Real property disposed of by will passes directly to the devisee, and not to the personal representative, except in a few states, where the statute otherwise provides.

A will must be in writing, signed by the testator, or, in some states, by another in his presence. The will must be attested by witnesses, before whom the testator must acknowledge the instrument or his signature thereto, as the statute may require. The witnesses must be persons competent to testify in regard to the will, and they are usually required to sign their names to the instrument in the testator's presence.

In case a devise fails, owing to the death of a devisee, before the death of the testator, the property included therein passes