Jackson ex dem. Ballou v. Campbell

By the Court, Sutherland, J. The defendant objects to a recovery, principally on two grounds; 1. That the treasurer of Hamilton college had no authority to assign the mortgage, and that Ballou consequently acquired no interest in the mortgage, or title to the mortgaged premises, by virtue of such assignment; and 2. That admitting the assignment to have been valid, the lien of the mortgage was destroyed by the lender made of the principal and interest due upon the mortgage, which Ballou refused to receive. In the absence of all proof upon the subject, we should probably have been authorized in presuming that the assignment had been regularly made, and that it had been signed by the treasurer and the seal of the corporation affixed thereto, by the express authority of the trustees. But the treasurer slates affirmatively and distinctly that he had no express direction or authority from the trustees to make the assignment ; that he never consulted them upon the subject, and that it was made without their knowledge; and it is to be inferred from his testimony that they were ignorant of the fact even at the time of the trial. The money received upon the assignment was regularly credited in the accounts of the treasurer, but without stating that it had been raised by an assignment of the mortgage, instead of a payment by the [576] mortgagor in the ordinary course. There is nothing, there-pore? from which the subsequent assent of the corporation to *^e assignment can be inferred. The authority to collect and pay the debts of the corpora- . . , r J „ _ . . 1 . tian does not involve the power to sell and assign its securities, much less to bind it by the solemn obligation of its seal. The fact that the treasurer had the custody of the seal, lays no foundation for a presumption or inference that he had a right to use it so as to bind the corporation, without the express direction of the trustees. He was a mere depositary. The treasurer states that he had affixed it to several contracts made by the trustees, by their directions. He does not pretend that he had ever used it, except in this instance, without such direction. There is no user, therefore, from which the power can be implied, if such a power is capable of being established by, implication. But in this instance not only the seal was affixed without the knowleege of the trustees, but it was affixed to a contract, not made by them, but by the treasurer, and of which they never heard. It appears to the court, that to give to this assignment the effect of a conveyance of the legal estate of the corporation in the premises covered by the mortgage would be establishing a principle, the operation of which would be found most inconvenient and alarming. It would be equally applicable to all public and private agents, from the comptroller of the state down to every attorney to whom a demand may be entrusted for collection. Would an assignment by the comptroller of the mortgages given to the state, without an express legislative provision upon the subject, pass the interest of the state in the mortgaged premises, and enable the assignees to recover them in an action of ejectment 1 or could an attorney at law, with whom a note was entrusted merely for the purpose of collection, transfer it by assignment to whomsoever he pleased 1 A plaintiff in ejectment must shew a strict legal title; he cannot claim the benefit of presumptions in his favor, nor supply the defect in his legal title by any equitable considerations resulting from the circumstance of having paid a valuable consideration for an assignment or conveyance which from any cause whatev [577] er proves to be invalid. His equities, if any he has, are to be enforced in a different action at least, if not in a different form. A defendant in ejectment, when not bound by some matter of estoppel, may always avail himself of any imperfection in the legal title of the plaintiff. The tender made by the defendant on the 5th September, 1887, of the amount which he admitted to be due on the mortgage, is not such an admission of the lessor’s right as to preclude the defendant from subsequently denying it. He may have been, and probably was ignorant of the manner in which the assignment had been made. A strict legal tender and a payment of the money into court, in an action of debt or assumpsit, is an admission of the plaintiff’s right to recover the amount tendered ; but a mere offer to pay has no such conclusive effect; it is mere matter of evidence, and is not applicable in principle to a case like this. It is, at most, but an admission that so much is due on the security; but if not accepted, the defendant is at liberty at any subsequent time to contest'tlie plaintiff’s right to the security and the amount also. This objection being fatal to the plaintiff’s right to recover, it is unnecessary to discuss at large the other points in the case. I shall therefore only observe, that the mortgage of the 12th April, 1824, given by the defendant to Ballou, was properly admitted in evidence for the purpose for which it was offered. It was offered to shew that Ballou had paid up the mortgage to the college, and taken an assignment of it with the assent of the defendant. Admitting it to have been usurious, and therefore absolutely void as a security, it wTas still competent evidence between the parties of any collateral fact which it legitimately tended to establish. It shews satisfactorily that it was understood between the parties that Ballou was to pay off this mortgage, if not to take an assignment. of it. He would therefore, in an appropriate action, be entitled to recover the principal and interest, at six per cent., up to the time when he paid the mortgage to the college, with interest upon that sum at the same rate until paid by the defendant. [578] Where a mortgage is assigned with the concurrence of the mortgagor, the assignee shall be entitled to interest upon the interest paid by him, as well as upon the principal of the mortgage ; Powell on Mortg. 965, 6; 2 Keb. 376 ; 2 Comyn’s Dig. 529, 530, tit. Chancery, 3, s. 3; Smith v. Pemberton, 1 Cas. in Chancery, 67, 258; 1 Vernon, 169; but if made without the privity of the mortgagor, the interest paid does not become principal so as to carry interest. Comyn’s Dig. Chan. 3, s. 3, 530. This latter position, however, is said, in an anonymous case in Banbury’s R. 41, to have this qualification : that if the mortgagee had applied to the mortgagor before the assignment and demanded his money and required him to join in the assignment, if the mortgagor refuses either to pay or join, the assignee shall recover interest both on the principal and interest. I apprehend, however, this would not be the rule at law, whatever it might be if the mortgagor should come into a court of equity to redeem. Mr. Banbury’s cases are not of very high authority. Lord Mansfield observed, in Tinkler v. Pool, 5 Burr. 2658, that they were very loose notes, and were never intended for publication. In an ordinary case of assignment, the assignee has a lien under the mortgage for whatever sum he would be entitled to recover against the mortgagor. Had the assignment been valid, the tender was not sufficient. If the assignment had been made with the assent of the corporation, (he mortgage would have been a lien for the interest upon the interest due when the assignment was made, as well as for the principal. The defendant expressed a readiness to pay only the principal and interest upon it at six per cent., and the amount actually tendered was not equal to the principal and interest compounded after the assignment. It is well settled that a tender of the amount due upon a mortgage, though not accepted, discharges the lien, although the debt, remains and may be recovered in an action. Bac. Abr. 457, tit. Tender, F. Co. Lilt. 207 a. sect. 335, and 209 b. sect. 338. 20 Viner, tit. Tender, N. sect. 4. Jackson v. Crafts, 18 Johns. R. 110. Judgment for defendant.