EVARTS v. CHELLAMMA

001-NLR-NLR-V-21-EVARTS-v.-CHELLAMMA.pdf

THE
NEW LAW REPORTS OFCEYLON.VOLUME XXI.
1918.
Present: Bertram A.C.J. and De Sampayo J.
EVARTS v. CHELLAMMA. ‘
105—D. C. Jaffna, 12,133.
Power of attorney—Deed executed by attorney on behalf of principal—
Deed signed by attorney with his name.
Where a person executing a deed in pursuance of a power ofattorney statedspecifically inthebodyofthedeed that he was
acting as the attorney of the principal and signedthe document
with his ownname,adding that hedid soastheprincipal’s’
attorney—
Held, thatthe powerofattorney wassubstantiallycomplied
with, and that the deed was binding on the principal.’
Sinnatamby v. Johnpulle > explained.
The facts are set out in the judgment of the District Judge(Dr. P. E. Pieris): —
The plaintiff is the brother of the addedparty,and in 1885, by a
power of attorney(copy P 2),constituted theadded party hiBattorney,
.with express’ authority to, among other acts, “sell and dispose of . . .. .
the said lands.”In 1911 the attorneyexecuted P1, by whichhe
purported to sell the entirety of certain lands referred to in the powerof attorney. It is common ground that these lands belonged in equalshares tothe plaintiff and to his brother.The first questionI am
asked to decideis whether the transfer as executed is effectiveto
convey the interest of the plaintiff.
The deed is inTamilThereisnoquestionthat Hall
(the notary) knewTamil, andtook elaboratepains to set out in the
attestation speciallywhatexactlythedeedwas meanttobe. There
is nothingto show that he knew English, inwhichlanguage thegrantor
signed the deed.
Omitting irrelevant portions,thetranslationofthe deed runs as
follows:“I, Alfred Chrysostom Evarts, attorney ofLevi SmithEvarts,
having been paidthesum of Bs. 425 the Bame havingbeen acceptedby
me for myself andonhis behalf, that is,on behalf ‘ofmy principal,- do
hereby sell the property hereinbelow described.
1 (1914) 18 N. L. S. 245.
1—XXI
( a )
IMS.
Svarts v.
OheUamma
” I do hereby declare that a portion of the above-mentioned land isinherited property of my brother, who has,by powers of attorney
granted in my favour, conferred on me right as attorney in and over
the same, and that the remaining portion belongs to me.”The
deedfurther states thata copy ofthe power of attorney was attached.
This deed was signed in English ” A Chrys. – Evarts for Levi S. Evarts.A.Chrys. Evarts. ” Then fo’-lows the Tamil attestation.Hall, the
notary, is very careful,and says,” the grantor, put hissignature for
himself personally and as the attorney ofLeviSmith Evarts to the
said deed by virtue of authority granted in the power of attorney
and as the personal act of the said Levi Smith Evarts and for him ashis attorney. ”
Sofar as the Tamilnotary wascapable of drawing upthe transfer,
it was meant to be a transfer by the plaintiff acting through his attorney,and also by the partywhowas attorneyactingon hispersonal behalf
in respect of a separate Bhare in which he was personally interested.Is there anything, then, in the English signature “ A. Chrys. Evarts forLeviS. Evarts ” whichprevents itfrom being the act ofLevi through
his attorney?
The plaintiff argues that, under the decision in Sinnatamby t. John-pulle,1 this is not theac.tof Levi through hisattorney.In that case
the wording of the power was identical with what it .is in the presentcase, viz., ” to act formeand on mybehalfand inmy name or
otherwise, and also in my name and as my act and deed to sign
… all deedsnecessary for giving effect …. to such sales
” There in the body of the deed the attorney described himself
as attorney, but signed it in hispersonalname, withoutanyqualifica-
tion or any expression to show that he signed as attorney. It was heldthat the deed did not bind the principal.
The present case is quite different. Herethe attorney has signed
expressly “ for Levi S. Evarts,” and I think that by doing so he hassatisfied the requirements of thepower ofattorney. Inviewof this
finding, it is not necessary to go into the other issues raised.I hold that
P 1 is operative to transfer theplaintiffs’interest, andhisaction is
dismissed, with costs.
The deed in question was as follows: —
P 1.—Transfer No. 589.
Know all men by these presents that I, Dr. ‘ Alfred ChrysostomEvarts, presently of Cbavakachcheri, attorney of Levi Smith Evarts,having been paid by Arumogam Paramaswamy, of Sandirippay, – thesum of Be. 425 only as price, the same having been accepted by me formyself and on his behalf, that is, on behalf of my principal, do herebysell, transfer,and set over tothe said Paramaswamy the property
hereinbelow described, with all rights, title, and interests appertainingthereto. The properties are
Ido hereby declare that a portion of the above-mentioned lands isinherited property of my brother, who has, by power of attorney hearingNo. 875 datedSeptember 29, ‘ 1885, attested by P. Kumaraswamy,
Notary Public of Colombo, granted in my favour, conferred on merights as attorney in and over the same, and that the remaining portionbelongs to me by right of inheritance from my late father, lyampillai
1 (1914) 18 N. L. R. 245.
Katherevelu,byvirtue of transferdeeds No.141of December20, 1868,
attested by If. Amaralingam, Notary Public, and No. 88 datedJune 20,1866, attested by Sittampalam Suppramaniam, Notary
Public, infavour of my ‘ said late father, andpossession;thatthe
above-mentionedParamaswamy hasconveyedtohim perfecttitleto
possess theBaidproperty for everfrom this dayforth; ,thatthesaid
lands are freeholds and free of encumbrance; that I have- every rightand authority to transfer the said property; that should any disputearise concerning the lands, Ihold myselfresponsible tosettleitand
give over (quiet possession); and that accordingly the above-mentioneddeeds of sale are annexed hereto with endorsement caused to be madethereon, with copy of powerof attorneyand duplicatecopyofthe
protocol.
This deed was executed, &c.September 16, 1911.
Signed, witnessed, and attested :
(In English)Attestation.
{
A. Chbys EVABTS.
for Lbvx S. Evarts.A. Chbys. Evabts.
Thegrantor put hissignature for himself personallyandas the
attorneyofLevi Smith Evartsto the saiddeed by virtueofauthority
grantedin thepowerof attorney No.875of September 29,1885,
attestedbyP. Kumaraswamy,Notary Public of Colombo,andas the
personalactof the said Levi Smith Evartsand for him ashisattorney
in mypresence and in thepresence ofthe said witnesses,at the
Government hospital at Chavakachcheri, on this September 16, 1911, &c.
The power of attorney was as follows:—
P 2.—No. 875.
To allto whom these presents shall come,I, Levi Smith Evarts, of
Jaffna, presently of Colombo, send greeting: —
AndwhereasI am desirousofappointingsomefit and
properperson asmy attorney to managethesaid landsandpremises
situate in Jaffna:
Now know ye and these, presents witness that I do hereby nominate,constitute,andappoint mybrother,the said AlfredChrysostom Evarts,
my true and lawful attorney in Jaffna, to act for me and on my behalfand in my name or otherwise for all and each and every or’ any of thefollowing purposes:—
1. Tosuperintend,manage,and controlthe several lands and
premiseswhich I have inherited frommysaid parents, and tosell and.
disposeoforto mortgageandhypothecate the saidlandsand premises
or to demise and lease the said lands and premises – unto any person orpersons,and to receive from them allmoneys inrespect of suchmortgage
or leasefrom time to time, and to giveandgrantunto him andthem in
my namereceipts anddischargestherefor, andalso in my name and’ as
my act and deed tosign, seal,execute, anddeliver all deeds and other
writings necessary for giving effect and validity to such sales, mortgages,,leases,receipts,respectively,andtoask, demand, sue for,recover, and
receiveofandfrom any personorpersons liable topaythe same all
sums of money in rear ;t of thesaidlandsand premises,and on
payment, &c.
September 29, 1885.Signed, witnessed, and attested.
( « )
1918.
Evarts v.
OHeUamma
Hayley (with him Rutnam), for the appellant.—The deed was not-signed in the name of L. S. Evarts, but was signed by the agentwith his own name thus: “ A. Chrys. Evarts for Levi S. Evarts.”It was held in Sinnatamby v. JohnpuUe 1 that an agent holding apower of attorney like the power of attorney in this case must signthe name of his principal, and not his own name. Counsel referredto Berkeley v. Hardy;2 Fontin v. Small;2 Story on Agency, 175,176.
A. St.. V. Jayawardene (with him Balatdngham), for the res-pondents.—The recitals in the deed and the signature make it quiteclear that A. Chrys. Evarts was signing on behalf of his principal.The technical English rules of conveyancing do not apply to Ceylon.Counsel cited Halsbury’s Laws of England, vol. I., Agency, article365; Wilks v. Back; * Letchiman v. Peria Garpen Ghetty; 5 CarimjeeJafferjee v. Sebo; • Leake 327..
In®Sinnatamby v. Johnpulle 1 the attorney-signed his name, andthere was nothing to show that he was signing as attorney.
June 17, 1918. Bertram A.C.J.—
The question for decision in this case is whether the deed oftransfer executed by the second defendant, partly in his own namein respect of his own share and partly as agent of his brother inpursuance of a power of attorney, is, so far as it relates to thebrother’s share of the property, a good execution of the power.There appear to be other matters of controversy between theparties in connection with the matter. It is alleged, for example,by the second defendant that the brother’s share of the property had,at some period or other, been donated to him. We are not requiredto go into this question. All that we have to determine is whetherthis is a good execution of a power of attorney.
There is no question that, strictly speaking, a person executing adeed in pursuance of a power of attorney ought to have the. deeddrawn up in the name of his principal as party, and ought to signthe deed with the name of the principal, adding the words “ by hisattorney, &c. ” This is a strict compliance with the power ofattorney. The question arises, however, whether such a power ofattorney is not substantially complied with, if the attorney statesspecifically in the body of the deed that he is acting purely andsimply as the attorney of the principal, and if he signs the documentwith his own name, adding that he does so as the principal’sattorney. This, after all, is the way in which it would occur to aplain man to discharge his functions in pursuance of the authorityaccorded to him, and it would be most unfortunate in this country,where three languages are employed, and where documents have to
»(1914) 18 N. L. B. 245.
(1826) SB AC. 355.
2 Strange 705.
(1802) 2 East 142.
(1879) 2 S. C. C. 193.
(1896) 2 N. L. B. 286.
( s )■-be executed by notaries of a’ comparatively simple typo in remoteparts of the country, if the strict technicalities of English practicewere applied to the deeds whioh they draw up.
AjOf;’11
, To proceed to consider ‘the authorities on the subject. There areseveral English authorities, going back to a fairly remote date.They have been summed up as follows in a recent text book,Halsbury’8 Laws of England, Agency, Article 365: “ A deedexecuted in pursuance of such a power is properly executed in the ‘name of the principal or with words to show that the agent issigning for him.” There is one case which is ‘referred to in alldiscussions on the subject, namely, Wilks v. Back,1 where theattorney, Mathias Wilks, acting on behalf of the principal, JamesBrowne, in executing the deed, signed “ for James Browne, MathiasWilks.” It was argued that he ought to have signed “ JamesBrowne, by his attorney Mathias Wilks.” But this contention wasrejected by the Court of King’s Be&oh. Grose J. says: “ Where isthe difference between signing J. B. by M. W. his attorney, whichmust be admitted to be good, and M. W. for J. B.? In either casethe act of sealing and delivering is done in the name of the principaland by his authority.” Lawrence J. said: “Here the bond wasexecuted by Wilks for and in the name of his principal, and this
is distinctly shown by the manner of making the signature
There is no particular form of words requiring to be used providedthe act was done in the name of the principal.” In an Irish case,M’Ardle v_. Irish Iodine Co.,2 of which unfortunately we have onlythe headnote, the principle is laid down as follows: “A deedexecuted by A on behalf of B must, in order to bind B, be executedby A in the name of B, or by A in his own name with such words toshow that he is acting solely as the agent of B in such execution.There is only one English case which is in the contrary direction,and that is the case of Berkeley b. Hardy.2 In that case, whichreferred to a lease, the principal’s name appeared throughout thebody of the deed, but the deed was executed by the agent in hisown name simply, without any reference to the fact that he wasexecuting it as agent. It is not clear from the judgment oh whatprecise grounds Lord Tenterdon based his decision. The decisionmay have been based upon the faulty execution of the deed, of itmay have been based upon the other ground in the argument, thatno person could validly execute a deed as attorney of anotherperson unless his own appointment was also by deed, which wasnot the case here. What Lord Tenterdon said in deciding againstthe validity of the deed was that ” we- are left to decide upon thosestrict technical rules of law applicable to deeds under seal which,
I believe, are peculiar to the law of England.” It may be doubted,therefore, in any view of the facts, whether that decision should be
OhcOarhkftfi
1 (1802) 2 East 142.
* (1864) IS Irish L. R. 146.
2 (1826) 5 B.&C. 355.
( 6 )
1918.
Bkbtram
A.C.J.
Evarts v.OheUamma
■ followed as an authority in this Colony, and in any case it shouldbe noted that on the facts in that case the deed was executed in theagent’s name, without any reference to the principal.
These being the English authorities, we will now consider the localauthorities. The first of these is Carimjee Jafferjee v. Sebo.1 Therethe document was signed simply with the words “ Sebo’s attorney,Giro.” The execution was held to be sufficient. The documentwas executed in Sinhalese, and the- decision may have turned uponthe question of the precise significance of the Sinhalese words used.The next case was Letohiman v. Peria Carpen Chetty.1 2 That was acase of a promissory note. There the note was – signed with thewords “ Kana Peri Ramaswamy.” It was pointed out in thejudgment that “ the distinctive portion of the principal’s name,that is, ‘ Peria Carpen,’ did not form part of the subscription tothe promissory note.” It appears to be suggested that, had thedistinctive portion of the principal’s name formed part of thesubscription to the promissory note, then the execution, even thoughit was an execution in the agent’s name, might have been good.
The last case, and the one that has occasioned us most difficulty,is the case of Sinnatamby v. Johnpulle.3 In .that case the document,which was an agreement for a lease, in the body of the deed con-tained references to the fact that the person executing was actingas the attorney of the principal. But it was signed by the attorney’sname alone, without any reference to the fact that he was executingit as attorney. In this respect it is parallel to the English case ofBerkeley v. Hardy,* to which I have referred above. It may benoted about this case that it was not necessary for the decisionof the case that the Court should determine whether or not thedocument was duly executed. The Court held that, in any case,the document was ultra vires, inasmuch as the substance of the deedwas not within the authority accorded to the attorney. In hisjudgment the Chief Justice merely remarks that the District Judgefound that the deed being executed by the agent in his own namedid not bind the principal. He does not express any opinion as towhat would constitute an execution of the deed in the name of theprincipal. At any rate, this case cannot be cited as an authorityfor the proposition that a deed signed by the attorney with hisname, but expressly on behalf of -the principal, is not a goodexecution of the power of attorney. It cannot be cited as anauthority for that proposition, inasmuch as the deed there referred .to was not executed in that manner.
The only real question we have to consider in this case is whetherthe case of Sinnatamby v. Johnpulle 2 is an authority which preventsus from applying what appears to be the substantial principle of theEnglish authorities, apart from the case of Berkeley o. Hardy * I
1(1896) 2 N. L. R. 286.
2(1879) 2 S. C. C. 193.
(1914) 18 N. L. R. 245.* (1826) SB. AC. 355.
( 7 )
do not myself read the judgment in that sense, and, as I have saidbefore, I think it would be extremely unfortunate if we foundourselves driven to adopting technical rules in a matter of thisdescription. So far as the facts of the case go, it is perfectly clearthat the attorney intended to act purely as attorney, and the notarydrew up’ the deed solely in order to enable him to act in thatcapacity. In substance there is no question that this was not atransfer intended to be made by the attorney by virtue of anyinterest of his own in the property, but that, so far as his brother’sshare was considered, he was acting simply as attorney on behalfof a principal. It is quite true that in one part of’ the deed there isa covenant in which the attorney ought to have covenanted onbehalf of the principal, but in which he takes the responsibility ofthe covenant on himself. The covenant for quiet possession is infact, a covenant by the attorney, pure and simple. But. I do notthink the fact that in this place of the deed -he takes this responsi-bility upon himself detracts from the substantial nature of theinstrument, which is an instrument executed on behalf of theprincipal.
In all the circumstances of the case I think the appeal should bedismissed, with costs.
T)j>, Sampayo J.—I agree.
1918.
Bertram
A.C.J.
Evarts v.
CheUamma
Appeal din-missed.