The Chancellor. The personal mortgage to Whitney not being filed till after the death of Alvord, and not being accompanied by an immediate delivery and continued possession of the property, it may be doubtful whether it was sufficient to give Whitney, who was liable to Meads as the last endorser of the note of $1800, a preference in payment over the other creditors of Alvord.
This case, however, does not turn upon that question; as I am satisfied that an equitable. lien upon the property was created by the special clause in the power, in reference to the $1800 note and to notes drawn by Alvord and endorsed by Meads.
And as thatoinstrument was accompanied by an actual delivery and continued change of possession of the property, until it was converted into money and applied in payment of the two several notes, it was not necessary that the instrument which created that lien should be recorded, under the act of 1833.
It is the duty of the court to give such a construction to the language of a written instrument as to carry into effect the intention of the parties, so far as that intention can be collected from the whole instrument and the situation of the parties at the time the writing was executed.
And I think no one who reads, this special clause, in connection with the evidence, or rather the admissions, of extrinsic facts which are proper to be taken into consideration, can believe that Alvord did not intend to give to the endorsers of the $1800 note, and to Meads, as the endorser of the Rector note and other notes which he might thereafter endorse, a beneficial interest in the execution of this power, for their security and indemnity.
It clearly shows that 209 Alvord anticipated that it would probably be necessary for Meads to incur further responsibility as his endorser, in the discharge of the duties of his agency, and that something more than an ordinary power of attorney was necessary to protect him from loss.
And as the possession of j the property was delivered to Meads, in connection with J this power to dispose of it for the security and protection of himself and the other endorsers, the property must be considered as pledged to him for that purpose. The pow-^ ■sr to sell, therefore, was coupled with an interest in the property thus pledged, and survived. (Bergen v. Bennet, 1 Caines’ Cas. in Err. 1. Raymond v. Squire, 11 John.
Rep. 53.) In the case decided by the supreme court of the United States, (Hunt v. Rousmanier, 8 Wheat. Rep. 174,) there was no actual pledge of the property. But a mere power of attorney was executed authorizing the plaintiff to transfer it in the name of Rousmanier. It was upon that ground, as I understand the case, that C. J. Marshall held that the power was not coupledo with any interest in the vessels.
And I presume his opinion upon that point would have been different if the power had been accompanied by an actual delivery of the vessels as a pledge for the payment of the debt. But even in that case the court protected the rights of Hunt as an equitable mortgagee of the vessels; though the decision was placed on the debate-able ground that a party may be relieved in equity against a mistake of law merely.
Being satisfied that Meads had a lien upon the property in his hands, and a right to retain for the amount of these notes, under the special clause in the written power executed by Alvord, it is not necessary to inquire whether he is not also to be considered as the factor of Alvord ; so as to entitle him to retain for his advances and liabilities, entirely independent of this special provision in the power of attorney to him.
If the arrangement between Alvord and Meads gave to the. latter the character of a factor, there can be no doubt as to his lien upon the property in his hands, and his right to retain for all his advances and re 210 sponsib'ilities in the business with which he was entrusted by his principal. Although it was doubted, previous to the case of Kruger v. Wilcox, (Amb.
Rep. 252,) it is now (1 well settled that a factor has a lien and may retain for a v general balance ; including responsibilities incurred in the execution of his agency. (Whit. on Lien, 103. 2 Kent's Com. 640. Story on Agency, 34, § 34.) And the case of ,j Foxcraft v. Wood, (4 Russ.
Rep. 487,) was probably decided upon the ground that the arrangement under which the business at Birmingham was carried on constituted Foxcraft the factor of Banning, although he received a fixed salary instead of the usual mercantile commissions for his services. 6 The decision of the master was right in allowing to the administratrix the amount retained by Meads for the two notes. The exceptions are therefore overruled with costs, and the report of the master is confirmed.
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