I believe that it is unsound to hold, in effect, that an instrument not under seal, although not a bond, may be recovered upon as such in an action at law. I do not believe that in the case at bar, a consideration deemed valuable at law has passed to the signers of the paper accepted in lieu of Greathouse's bond nor that they are in any manner estopped to deny liability. I think that to hold otherwise, for all practical purposes, destroys the effect of a seal in West Virginia.
When this State was formed it adopted in that process the law of the Commonwealth of Virginia. At that time Virginia had a statute providing that failure, not want, of consideration could be shown concerning instruments under seal. As drawing that distinction see Williamson v. Cline, 40 W. Va. 194,20 S.E. 917. Otherwise both Virginia and West Virginia had regarded the seal with the effect and solemnity accorded it at common law. It was not until 1921, by the adoption of what is now Code, 36-3-1, that a seal was not an absolute essential to transfer of the legal title in land, regardless of consideration or intention. Still later, upon the adoption of the Code of 1931 the Revisers, in order to require in no case more formality in the transfer of chattels than was required in the transfer of the legal title to land, added to the language of Code, 36-1-5, by providing that "No seal shall be necessary to give validity to a gift of goods or chattels by writing * * *" including, of course, cases where the donor and donee were living together. I think it absolutely necessary to consider these statutory matters in arriving at a conclusion concerning the present necessity for the use of *Page 601 the seal in West Virginia. I believe also that the cases from other jurisdictions relied upon in the majority opinion do not consider the legislative history of the seal in West Virginia which gives rise to the application of the maxim expressiounius est exclusio alterius and, therefore, do not apply. The history of the seal in this State shows plainly that it was the purpose of our Legislature to retain its use, as illustrated by the above maxim, as at common law except where altered by statute. See 40 West Virginia Law Quarterly 330, 345.
I am in accord with the conclusion reached in the majority opinion to the effect that the instrument sued upon is not a "bond." There can be no question but that under our previous holdings this conclusion is inescapable. I do not agree, however, that under these or any other circumstances it may be treated as a "common law obligation." That term I believe was loosely used in City of Charleston v. Dawson, 85 W. Va. 353,101 S.E. 728, and I fear that the majority opinion has enlarged that usage. I believe that the books use the term common law obligation to distinguish statutory bonds from bonds not so required but recognized at common law. The Dawson case discusses it in that sense. The discussion in the opinion of the Virginia case of Stinson v. Board of Supervisors ofBuchanan County, 153 Va. 362, 149 S.E. 531, beginning at page 375 and authorities there cited clearly illustrate the distinction I have in mind which is not mentioned in the majority opinion. It, of course, is to be borne in mind that the Stinson opinion and the cases there cited deal with instruments under seal, i. e. bonds. We are here dealing with an unsealed instrument.
The majority opinion follows the reasoning of the United States Supreme Court in the case of United States v. Linn, 15 Pet. 290, 10 L. Ed. 742, decided in 1841, with three justices, including Justice Story, dissenting. The Linn case was certified from the Circuit Court of the United States for the State of Illinois. That action was brought for the purpose of recovering upon a paper that in all respects was a statutory bond of a Receiver of Public *Page 602 Money for the Federal Government within that State, with the single exception that it was not under seal. The Supreme Court held that there could be a recovery at common law although the instrument was not a bond. The Court, however, did not speak of the paper as being a common law obligation. William Linn had been inducted into office and had received the emoluments and benefits thereof. This was held to be a consideration moving to his sureties. In my judgment this case is not germane to the case at bar, in the first place, because it does not consider the statutory history of a seal in this jurisdiction. In the second place, the opinion is peculiar in that it bases recovery upon the instrument sued on being regarded as a common law contract. What common law and of what State? There is no national common law. 11 Am. Jur. 158. As I understand it, the Federal Courts follow the common law of the State wherein the jurisdiction of the particular case lies, and use their own construction of the common law only to interpret the Constitution and statutes of the Federal Government. The Supreme Court held that the paper given by Linn was not the contract intended by the parties, i. e. a bond. Its holding that notwithstanding that fact, recovery lay at common law, in my opinion, is nebulous to say the least. Furthermore, the case of City of Charleston v. Dawson, 85 W. Va. 353, 101 S.E. 728, decided in 1920 and cited in the majority opinion, to my mind holds the exact contrary. Howard Dawson was a policeman of the City of Charleston who had been inducted into office, received the emoluments and used the equipment and weapons of that office for an unstated period. He had given a bond in the sum of $3,500.00 the condition of which included the accidental discharge of any pistol. This condition was not required by statute. Its violation was the alleged basis of recovery. This Court held that condition mere surplusage, and in dealing with the contention that the bond should be regarded as a common law obligation, including the condition in question, had this to say: "This bond is not based upon any consideration deemed valuable in law, and *Page 603 hence cannot be regarded as a valid common law obligation.Its only effect is as a statutory bond, and it is valid only tothe exent that it conforms with statutory requirements." (Italics mine). This notwithstanding the fact that Dawson's bond was under seal.
There is no question but that as between the Linn case and the Dawson case this Court is bound by the reasoning in theDawson case. As I said in my dissent in the case of Holley v.Purity Baking Company, 128 W. Va. 531, 543, 37 S.E.2d 729, since the decision in Erie Railroad Company v. Tompkins,304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, overruling the case ofSwift v. Tyson, 16 Pet. 1, the decisions of the State Courts of last resort now control those of the Federal Courts in Federal cases upon questions arising within the territorial jurisdiction of the State Courts. Although the question did not directly arise in the Dawson case, he, nevertheless, had taken office, performed its functions and received its benefits. This Court did not consider that a consideration moving to his surety.
It is my belief that the majority opinion will have the effect, from a practical standpoint, of wiping out the use of seals in this jurisdiction. Perhaps as a matter of policy, that should be done. I believe, however, that that is a legislative question, as it has been in the past. The bond was the only instrument requiring the use of a seal before this decision. Now it is no longer necessary to the validity of a bond in contested cases. True, recovery cannot be had if an unsealed instrument is proceeded on as a bond. If it is proceeded on as a common law obligation, recovery may be had. True also, the majority opinion academically preserves the use of a seal by this language: "The application of the doctrine of estoppel in pais, or by the conduct of the parties, to the facts of this case as stated in the declaration which, upon demurrer, must be regarded as true, should not be understood to mean that the common law requirement, so firmly established in this jurisdiction, that a written instrument, to be a bond, must bear a seal, is abrogated in all cases in which a public officer qualifies for the office to which he is appointed or *Page 604 elected and executes and delivers as his official bond an unsealed written instrument." The opinion then goes ahead to state, in effect, that the application of its reasoning depends upon the facts in each particular case.
To my mind it is impossible to imagine litigation affecting recovery on a bond that has not been given operative effect. If it has been given operative effect, benefits to the principal have been received because of it. Benefits received are a binding consideration, according to the majority, and sufficient to make an unsealed obligation binding upon the surety. This, from a practical standpoint, is tantamount to saying that no bond under which a controversy arises need be under seal, because a controversy cannot arise until after the instrument has become effective.
I have examined the cases cited in the majority opinion and find that all, with the single exception of the Linn case, involve instruments under seal. I therefore think it unnecessary to discuss them beyond calling attention to the fact that questions which arise from irregularities and defects in the body of the papers under consideration are clearly distinguishable in principle from the validity of their execution, i. e. the effect of a seal. A sealed instrument is of entirely a different nature from one not sealed. The formeris the contract: the latter the best and controlling evidence of the contract.
The foregoing comments are, of course, intended to apply only to actions at law. The extent to which the instrument in question might be reformed in a chancery proceeding I have not examined with care. See Town of Montville v. Haughton, et al.,7 Conn. 543. I do not believe that the rule strictissimi juris nor that which more strictly limits the obligation of an unpaid surety than that of a surety who is paid applies because here we are not considering the construction of the body of the instrument, the decision turning upon its manner of execution.
I would affirm the judgment of the Circuit Court of Webster County. *Page 605