Page:Notes to Clark on contracts (IA notestoclarkonco00graviala).pdf/10

3. recognition in the same cases and in the same manner as does a scroll used by way of (as a substitute for) an actual seal. For criticism on this decision, see note by Prof. Lile to the case as reported in 3 Va. Law Reg. 722. For discussion of seals in Virginia, see 1 Va. Law Reg. 622; 3 Id. 282, note by Prof. Burks to Grubbs v. National Life, etc., Co., 94 Va. 589.
   So far we have considered the case where a scroll is apparent on the face of the writing, and the only question is, whether it was affixed thereto "by way of seal." But a different question is presented when, though there is full recognition of the instrument in the body thereof as a sealed instrument by the words "witness my hand and seal," or in the attestation clause it is declared to be "sealed" in the presence of the witnesses—yet on inspection of the instrument neither wax, wafer, scroll, nor any mark of a seal is found upon it. Can such an instrument be deemed under seal? In the recent case of Reusens v. Lawson, 91 Va. 226, the following language of Judge Parker in Parks v. Hewlett, 9 Leigh, 518 (taken from Sugden on Powers, p. 236), is disapproved by Buchanan, J.: "If in the attestation of an instrument it is stated to have been sealed in the presence of witnesses, it will, in the absence of evidence to the contrary, be presumed to have been sealed, although no impression appear on the parchment or paper;" the learned judge declaring (at p. 509), "In the absence of other facts, I do not think such a paper as Judge Parker describes could be held in this State to be a sealed instrument." But on the facts of Reusens v. Lawson, it was held that whether a deed offered in evidence had once been sealed (no mark of a seal or scroll appearing on its face) was a question for the jury. These facts were thus stated by Buchanan, J.:
   "If, however, an original instrument, more than fifty years old, was offered in evidence, and was a good deed in form and substance, except that it lacked the wax, wafer, scroll, or other mark of a seal upon it, purporting to convey land, recognized the seal in the body of the instrument, was attested by witnesses who declared that it was signed, sealed, and delivered in their presence, was acknowledged as a deed before the officers taking the acknowledgment, was stated by the clerk (who certified to the official character of the officers who took the acknowledg-