Peabody Building & Loan Ass'n v. Houseman

Mr. Justice Paxson delivered the opinion of the court, March 24,th 1879. In 1872, Charles M. S. Leslie, a conveyancer of good standing in the city of Philadelphia, applied to the plaintiffs for the loan of some money, to be secured by mortgages upon his real estate. The application was favorably considered; the necessary papers were prepared, and mortgage searches obtained from the recorder of deeds. From each of the three searches thus obtained, a mortgage was omitted; the mortgaged premises were sold under the omitted mortgages, and the money loaned by the plaintiffs was wholly lost. This suit was brought against the recorder of deeds to recover the loss. Upon the trial in the court below, it appeared that the searches were ordered by Mr. Leslie, with the consent of the plaintiffs’ solicitor, James H. Stevenson, Esq. In his testimony, Mr. Stevenson tells how this occurred. He says: “I drew the mortgage for f1600 referred to in this record; Mr. Leslie got this search with my permission; after producing it, and seeing that my mortgage was properly recorded, I paid him the money., Mr. Leslie said he [264] was in a hurry to get his money, and that with my permission he would prepare an order for the search ; he did, and I compared it with the description in the mortgage, and the date occurring in the title. Pie then, with my request, obtained the certificate from the recorder; he said he could obtain it more quickly than I could. I agreed to let him do it, and I paid him the money on the recorder’s certificate.” It also appeared that the omitted mortgages were purposely left off the searches by the clerk, and that this was done at the request of Mr. Leslie, and upon his assurance that the said mortgages would be paid. Mr. Myers, the search clerk, said in his examination in chief: “I knew Leslie; I issued these searches; I knew these encumbrances were not on the search; I told Leslie to be sure and have them satisfied; he said he would; I did not certify the mortgages on record to Alexander Smith, because Mr. Leslie requested me not to, and told me it was all right, that he intended to pay them and have them satisfied out of the money he was to receive from the association.” • Out of the foregoing condition of facts the learned counsel for the defendant constructed the somewhat ingenious defence, 1. That Leslie was the agent of the plaintiffs to procure the search; and 2. That having notice or knowledge of the omitted mortgages during the course of his procurement of the searches, his knowledge was the knowledge of the plaintiffs, and they could not recover. This view of the case was substantially sustained by the court below, and forms the subject of the second and third specifications of error. In Houseman v. The Girard Mutual Building and Loan Association, 31 P. F. Smith 256, the question whether Leslie was the agent of the building association, or merely the servant or clerk of the conveyancer, was left undecided. It was not essential to the ■decision of that case for the reason that granted the agency, there was no proof that the agent acquired his knowledge of the omitted searches in the transaction in which he was employed. “ There ■was not only no evidence of this,” said Justice Sharswood, “but it was plain that it had been gained before, and in an entirely different transaction.” In the case in hand it is equally clear that Leslie’s knowledge of the omitted encumbrances was not acquired in the course of the particular transaction. It is, however, attempted to take the case out of the ruling in Houseman v. The Building Association, supra, for the reason that Mr. Leslie’s attention was called to the omitted mortgages whilst procuring the searches. We do' not think it important to discuss the question how far ■Leslie’s knowledge would have affected the plaintiffs, had he been their agent. It would be carrying the doctrine of agency beyond ■ any recognised limits, were we to hold that Leslie was the agent of the plaintiffs for any purpose. The most that can be said, is that [265] Mi. Stevenson, the plaintiff’s solicitor, permitted him to procure the searches, in order that he (Leslie) might the sooner obtain the money. If an agent at all, he was the agent of Stevenson, and for the mere purpose of procuring a.search, neither Stevenson nor Leslie had anything to do with making the searches, Stevenson was employed as plaintiff’s conveyancer, for the purpose of prepar ing the papers and ordering the necessary searches. It is not pretended that Stevenson had any authority from the company to employ any one under him. It needs no authority to show that an agent employed for a special purpose, cannot, without express authority, employ one or more agents under him, so as to bind his principal. The defendant’s search clerk knew when he issued the searches that the plaintiffs were about to loan money upon the faith of them. He omitted the mortgages in question, upon Leslie’s assurance that he would “ have them satisfied out of the money he was to receive from the association.” The recorder has no right to throw the disastrous results of the misplaced confidence of his clerk upon those who loaned their money upon the faith of his official certificate. The judgment is reversed, and venire facias de novo awarded.