¶1The single question presented upon this appeal is, whether the judge at the circuit erred in excluding the *335 mortgage purporting to be executed by Mrs. Arnold, when the same was offered in evidence. I think there can scarcely be any doubt that the decision was entirely correct. The paper called a mortgage was not, in fact, in any sense, a deed. It was entirely incomplete. Upon its face it was an imperfect instrument. No mortgagee or obligee was named in it, and no right to maintain an action thereon, or to enforce the same, was given therein to the plaintiff or any other person. It was, per se, of no more legal force than a simple piece of blank paper. If the plaintiff had proved, or offered to prove, the allegations of his complaint, that this mortgage was delivered to him by the defendants under an agreement that he should make advances to Arnold, and that he should hold this mortgage as security for such advances, and that such advances were actually made on the security of such conveyance, a very different question would have been presented for our consideration.
¶2Delivery is essential to the validity of a deed. When the deed is perfect upon its face, possession by the grantee named therein is presumptive evidence of a proper delivery. But in this case, no grantee being named in the body of the instrument — assuming that the blank might be filled after the execution of the instrument by the authority of the parties executing the same — it was indispensable to prove a delivery in fact, with the parol authority to fill the blanks with the plaintiff's name as mortgagee. The claim of the plaintiff and the argument of his counsel is, that possession of this paper, called a mortgage, implies a delivery to the plaintiff with authority to him to fill up the blank with his own name. This would be so with negotiable paper. This court recently so held in Van Duzer v. Howe (21 N Y, 534), following the case of Russel v. Langstaffe (Doug., 516), in which Lord MANSFIELD said: "The indorsement of a blank note is a letter of credit for an indefinite sum." The same point has been so held in many other cases.
¶3But this rule has never been applied to deeds or instruments under seal. The case of Kortright v. The Commercial Bank of*336Buffalo (22 Wend., 348), in which it was held that stock might be transferred by the holder writing his name in blank and putting his seal on the certificate, is scarcely an exception to this rule. That case was put upon its particular facts relating to the transfer of such securities, and evidence was given showing that such was the customary mode of transferring stock in the market of New York and elsewhere; and parol proof was given of delivery of the stock scrip in fact, as collateral to a loan of money, and of the particular facts showing that the holder received it in good faith as security for such loan. But in respect to instruments under seal, parol proof of an authority to fill the blank and deliver the deed has been generally required and given.
¶4The earliest or leading case is that of Texira v. Evans, not reported but referred to in Master v. Miller (Anst., 228;S.C., 4 T.R., 320), by Justice WILSON. In that case, as there stated, Evans wanted to borrow £ 400, or so much of it as his credit should enable him to raise, and for this purpose he executed a bond with blanks for the name and sum, and sent an agent to raise money on the bond. Texira lent £ 200 on it, and the agent accordingly filled up the blanks with that sum and Texira's name, and delivered the bond to him. On non est factum pleaded, Lord MANSFIELD held it a good deed. Here it will be seen that the bond was executed by Evans and delivered to an agent with authority to fill the blanks, negotiate and deliver the bond; and it was done accordingly. All these facts were extrinsic to the bond, and were necessarily proven by parol, and this notwithstanding the blanks in the bond had been filled up; and the bond produced at the trial was upon its face a complete and perfect instrument. This case establishes the rule that an authority to an agent to fill up and complete a deed and deliver the same, may be shown by parol, and, if duly proved, is sufficient to give force and validity to the deed in the hands of a party who has received the same for value and without fraud.
¶5This case, it is true, has been overruled in England in the case of Hibblewhite v. McMorine (6 Mees. Welsb., 214), where *337 it was held that an authority to execute a sealed instrument could not be given by parol, but must be by deed. But this case makes a mistake, I think, in considering that there is no distinction between the original execution of a deed and the filling up of some blanks in the same, not essential to its chief object and intent, but merely to its completeness. An authority to fill up a blank in a deed cannot properly be regarded as an authority to execute a deed. The deed in Texira v. Evans was, in fact, executed by Evans with his own hand and seal. He made it for a bond, to any one who would take it and advance him the money he wished to loan. It was to him entirely immaterial whose name was put into the body of the bond as obligee, and the amount inserted must necessarily be the sum borrowed.
¶6This case of Texira v. Evans has been followed in this State in a number of cases. Besides the case of the CommercialBank of Buffalo v. Kortright (supra), which was decided on the authority of that case, the case of Knapp v. Maltby (13 Wend.) is another authority in support and approval of the rule of Texira v. Evans. In this case an alteration was made in a sealed instrument after its execution, under a parol authority. The court held that this did not avoid the instrument; that the case, in principle, was within that of Texira v. Evans; and Judge SUTHERLAND says: "The instrument was signed and sealed by the party, and not by the agent; the authority was, not toexecute the instrument, but to make certain alterations or additions to it."
¶7In ex parte Decker (6 Cow., 60), appeal bonds were executed in blank, with a parol authority to fill them up and deliver the bonds; the court held them valid, on the authority of Texira v.Evans. In 8 Cow., 118, a like bond was executed in blank, with like parol authority to fill the blank and deliver it, which was done, and held valid. And in Woolley v. Constant (4 John., 60), the case is likewise approved.
¶8In other States a great variety of cases might be cited to the same effect, holding that a parol authority to fill up blanks in an executed deed, or make verbal alterations in it, might be *338 proved to give validity to or sustain the instrument. But, in none of the cases that I have seen, has the deed been held valid without the parol proof of the extrinsic facts, showing the due filling up of the blanks of the deed before its delivery, and its delivery for value by the agent, upon the clear authority, direction or consent of the grantor or obligor.
¶9While, therefore, the rule of Texira v. Evans, which the plaintiff's counsel invokes, should doubtless be regarded as settled law in this State, it does not help him in this case. He did not bring himself within that case. He did not give, or offer to give, proof of a parol authority to Arnold to fill the blanks in the mortgage and negotiate and deliver it; and the said blanks never were, in fact, filled by him, and the plaintiff clearly could not fill them at the trial without some proof of an authority to do so, extrinsic to the instrument itself.
¶10The judgment should be affirmed.
¶11SUTHERLAND, ALLEN and WRIGHT, Js., concurred.
¶12DAVIES and GOULD, Js., thought that the paper might have been made effectual by proof of parol authority to fill the blank; and they were for reversal because the plaintiff was not allowed the opportunity to give such evidence, to which they thought the proof of the paper itself was preliminary.
¶13Judgment affirmed.