Thompson v. Atchley

McCLELLAN, J. At the time this bill was filed by Atchley (appellee) against Mrs. Thompson (appellant) there was an outstanding unforeclosed mortgage on appellee’s lands in Madison and Marshall counties to secure appellee’s note to appellant for $3,000. [1] Redemption, under the equity to that end, was the original bill’s object, together with the cancellation and surrender to appellee of an elder mortgage on the land given by the appellee to Mrs. Humes, which the appellant had caused to be transferred to her. Subsequent to the filing of the bill, the appellant proceeded to foreclose her mortgage under the power of sale therein provided; but, according to the authority of Carroll v. Henderson, 191 Ala. 248, 68 South. 1, the right to exercise the power to foreclose by a sale is postponed or subordinate to the equity to redeem, put into effective previous motion by the filing of the bill to redeem. The writer entertained and set down a different view (Presnall’s Case, 181 Ala. 263, 270, 61 South. 804; Carroll v. Henderson, 191 Ala. pp. 253-258, 68 South. 1); but the decision of the court was as stated, and its rule must be here observed and applied, to the end that the appellee’s right to redeem under his equity, not in virtue of the system provided for statutory redemption, is clear and is to be given effect. F. T. Petty was a practicing attorney at Huntsville, who made loans of money of others on mortgage, and Mrs. Thompson also resided there. Previous to March, 1915, appellee had executed to Mrs. Humes a mortgage on his land to secure a note for $1,500. Appellee approached Petty for a loan, and during the interview Petty advised appellee that appellant had money appellee could borrow on his land, if the title was good; but that appellant would not take a second mortgage —a mortgage subordinate to that held by Mrs. Humes. The loan of $3,000 to appellee from appellant was agreed upon between Petty and appellee, without consultation or communication between appellee and appellant; the appellee promising to pay Petty $100 for his services in the premises, to be deducted by Petty from the sum so borrowed. Petty investigated and approved appellee’s title to the lands, drew the appellee’s note and mortgage to appellant for the loan, and turned them over to appellee for execution by his then absent wife. It was agreed by Petty and appellee that Petty should deduct from the loaned sum the amount, among others, of Mrs. Humes’ mortgage debt and interest and discharge Mrs. Humes’ debt, thus, in consequence, relieving the land of the mortgage prior to that of appellant, and pay to the appellee the net difference between the indebtedness of and charges against the appellee and the $3,000 so borrowed. .A short time subsequently, the appellant delivered her personally signed check for $3,000, payable to appellee, to the teller of the bank with which she did business in Huntsville, directing him to deliver the check to appellee when the teller received from him the properly executed note and mortgage for the loan. This check was delivered and later cashed, and the appellee’s note and mortgage were delivered to the teller, and subsequently these papers were turned over by the teller to the mortgagee, the appellant. Appellee denied the delivery of the check to him or to any *400 one for him, and also denied the indorsement of the check, which indorsement was in the name of the payee in the check, the appellee mortgagor. While the evidence is conflicting, at least in degree, on the issue whether the appellee received or indorsed the check or was present in the bank with Petty when the teller parted with the possession of the check, yet, after a earefitl review of the whole evidence relevant to this issue, particularly these features of evidence — the signature as of appellee on the back of the cheek and on other original papers certified to this court — our opinion is that the clear preponderance of the evidence is to the effect that appellee did not himself receive the $3,000 check from the teller and did not himself indorse the $3,000 check. According to the effect of the evidence, the only check relating to this matter appellee received was one for $777.24, payable to appellee, signed by Petty individually, of date April 17, 1915, and marked (stamped) paid on April 20, 1915, -bearing this notation, “For M!rs. Mary F. Thompson, loan in full.”,. This check’s amount represented the difference, before mentioned, between the sum of the loan, viz. $3,000, and the aggregate of appellee’s then indebtedness and the charges the appellee agreed to pay. Undoubtedly, the amount of the Humes mortgage debt was a factor in the calculation which gave the net difference represented by the check for $777.24. At the time Petty gave appellee this check for $777.24, Petty also gave the mortgagor appellee the following writing, signed for Mrs. Thompson, the mortgagee, by Petty, attorney: “This is to certify that on the mortgage of George David Atchley to Mrs. Mary F. Thompson, amounting to $3,000, of date March 31, 1915, the prior mortgage of $1,500 and one year’s interest, making a total of $1,620, is a part of the said $3,000, and is to be taken care of and to be paid by Mrs. Mary F. Thompson, this the 31st day of March, 1915. [Signed] Mrs. Mary F. Thompson, by Turner Petty, Atty.” About 15 months later Petty absconded. The mortgage held by Mrs. Hum'es was not paid, as the quoted writing assured it would be paid, out of the funds retained by Petty for the purpose. Subsequently, Mrs. Thompson caused the Humes mortgage to be transferred to her,-and relies upon it as an outstanding obligation against appellant and a charge upon his lands. As appears, a vital question in the cause is whether Petty was Mrs. Thompson’s agent or Atchley’s agent in respect of the application of the money so retained to the discharge of the Humes mortgage debt, with the result to attend that, if Petty was Mrs. Thompson’s agent in that particular, Atchley’s only obligation under his mortgage to Mrs. Thompson was and is to repay the $3,000 and interest, whereupon Atchley was and is entitled to have the Humes mortgage canceled and surrendered to him by Mrs. Thompson, who now holds it as assignee of Mrs. Humes; and, on the other hand, if Petty was Atchley’s agent in that particular and failed to perform the service Atchley commissioned him to perform, Mrs. Thompson was not then and has not since been concerned in the default of Petty in respect of his agency for Atchley. [2-4] Agency is a matter of contract, and its existence may be implied. Proof of its existence may be made through circumstances surrounding the parties and their conduct as well, unless it is a character of agency required to be constituted by a writing. Where the asserted agency rests in parol, and there is other evidence tending to show the fact of agency, the declarations of the alleged agent are admissible. Robinson v. Greene, 148 Ala. 434, 43 South. 797; Miller-Brent Lumber, Co. v. Stewart, 166 Ala. 657, 51 South. 943, 21 Ann. Cas. 1149. The distinguishing features of agency are representative character and derivative authority. 1 Mechera on Agency (2d Ed.) § 26. [5, 6] Where the evidence is in dispute, or reasonable adverse inferences from evidence are deducible, the solution of the question raises an issue of fact. 1 Mechem, § 300. It appears from the evidence that Petty had been long in the habit of passing upon the security for loans of money belonging to Mrs. Thompson, of viseing the title to lands proffered as security for loans of her money, of collecting debts due her, and of entering upon the margins of the records the satisfaction of mortgages held by her. On August 1, 1912, Mrs. Thompson executed a power of attorney to Petty. The report of the appeal will contain it. This instrument was recorded in the probate office of Madison county on August 15, 1912. It appears that even after the date of the execution of the mortgage here in question by appellee to appellant, Petty did an act that was within the purview of the authority conferred by this power of attorney. “Powers of attorney are, ordinarily, subjected to a strict construction; or, rather, the authority given is not extended beyond the meaning of the terms in which it is expressed.” Brantley v. Ins. Co., 53 Ala. 554, 557; 31 Cyc. p. 1407 et seq. This instrument did not itself authorize or empower Petty to loan money for Mrs. Thompson without her consent, nor authorize or empower Petty to engage for Mrs. Thompson and to oblige her to discharge an obligation of her debtor to a third person out of funds derived from a loan made by Mrs. Thompson to such debtor. We are unable to see that this instrument had or has any bearing upon the main issue presented in this cause. If appellee read this instrument on the records of Madison county before he made the agreement whereby Petty was to retain of the $3,000 loan, the necessary amount to pay the Humes mortgage, he could not have acquired therefrom any information that the instrument conferred, upon *401 Petty authority to engage as he (Petty) undertook to do. [7, 8] But, aside from this instrument, it seems from the whole evidence to he reasonably certain that Mrs. Thompson had conferred on Petty authority to render services for her in the lending of money which, while paid for by the borrower, were, in fact, of peculiar advantage to her. State v. Bristol Bank, 108 Ala. 3, 18 South. 533, 54 Am. St. Rep. 141. It is evident that she reposed confidence in Petty’s professional judgment and discretion with respect to value of properties offered as security and to the title the borrower had thereto. There are, however, two circumstances related to this loan to appellee that, if considered alone, would require a different conclusion from that just above indicated. They are: (a) That Mrs. Thompson made the check payable direct to the borrower, not to Petty, and left it with the teller of her bank to be delivered when appellee’s duly executed note and mortgage were there presented; and (b) that the borrower, appellee, agreed to pay Petty for his services in effecting the loan. Both of these circumstances are but evidential in character and effect. They have been considered in connection with other evidence in the cause bearing upon the issues. Upon such consideration, our conclusion is that other evidence in the cause neutralizes the effect of these two circumstances, that would, if unimpaired in probative force by other evidence, require the conclusion that Petty was the agent of the borrower and not the lender. There was no stipulation that Petty was to be, or was, the borrower’s agent, as was the case in several of the decisions noted on the brief for appellant. The source of this borrower’s compensation of Petty was predicated of the effectuation of the loan, and not independent of its effectuation. Mrs. Thompson had been in the habit, with perhaps occasional variations, due to her inspection of proffered land securities to ascertain their values, of lending on Petty’s recommendation, where the values and titles were satisfactory to Petty, the remaining condition precedent thereto being that Mrs. Thompson had funds at the time to make the loan. In passing upon the title and value of proffered security Petty, in whom Mrs. Thompson reposed the confidence and reliance indicated, undoubtedly rendered service of peculiar advantage to Mrs. Thompson, though, of course, his approval in these respects of the security ultimately inured to the benefit of the proposed borrower. If Petty had purposely or negligently induced Mrs. Thompson to lay out her funds on property the title to which was bad, it is not reasonable to suppose that Petty could have answered and defeated her action for damages on any theory that would have negatived his relation of agency to Mrs. Thompson as his principal, and so for the evident reason that the fidelity to the confidence thus reposed by Mrs. Thompson was manifestly inconsistent with the interest of the proposed borrower. It appears with all certainty that the title Mrs. Thompson required ^vas an unincumbered title.- Petty, of course, knew this and so advised appellee. Appellee wanted the loan, and had property of a value adequately to secure the loan of a sum sufficient to discharge the prior incumbrance of Mrs. Humes’ -mortgage. Petty exacted the discharge of that incumbrance as a condition precedent to the effectuation of the loan to appellee. Tile existence of that prior incumbrance was an obvious. obstacle to the clear title Mrs. Thompson required, and which she relied' upon him (Petty) to see was afforded her through the security prepared by Petty. Her direction to the teller of the bank to deliver the check when the papers Petty had prepared were delivered to the teller furnishes unmistakable evidence of her complete reliance upon Petty to guard and conserve her interest — not that of the borrower to whose interest in respect of title her interest was undoubtedly opposed — in making the loan to appellee. So, when Petty and; appellee agreed that Petty might retain an amount sufficient to discharge Mrs. Humes’ prior incumbrance, he was providing in the most practical and certain way, through the interception of the money loaned by appellant to appellee, to assure appellant an unincumbered title under appellee’s mortgage with appellant’s authority (to, and reliance upon, him (Petty) to see that she was afforded an unincumbered prime security. The fact that appellant did not (if so) at all compensate Petty for this service is, as stated, but an evidential circumstance insufficient in probative foree to overcome countervailing evidence. Petty’s compensation was provided for, according to the custom, out of the very subject of the loan, not through or in consequence of appellee’s agreement to compensate Petty if the loan was not secured. Petty was assured his fee' if the loan was made, and neither party became obligated to pay him otherwise. The loan could not be made unless an unincumbered title was assured, and the existence of this condition Mrs. Thompson committed to Petty to determine in her peculiar behalf. [9] Hence we hold, as did the court below, on the evidence disclosed by the record, that, in engaging with appellee to retain from the loaned sum an amount sufficient' to discharge the prior incumbrance in favor of Mrs. Humes, Petty was the agent of Mrs. Thompson, and the written assurance given by him to appellee was effective to then establish the relative rights of these parties and the obligation of Mrs. Thompson to see that the Humes mortgage debt was discharged through seasonable application of the money retained by Petty, wherefrom it results that Petty’s infidelity is ascribable to his principal, and entitled the appellee (complainant) to the cancellation and surrender of the *402 Humes mortgage, and the effectuation of appellee’s right to redeem under his equity to that end; all as correctly pronounced in the decree from whicÉ this appeal is prosecuted. Affirmed. ANDERSON, O. J., and SOMERVILLE and THOMAS, JJ., concur. MAYFIELD, SAYRE, and GARDNER, JJ., dissent.