Coolidge v. Smith

Ames, J. The judge who presided at the trial in the court below was in a position in which he was required to exercise the [557] functions of both judge and jury. H.is conclusions as to the weight and sufficiency of the evidence, and the credit which he ought to give to the witnesses, are binding upon us, and are not open to revision. Forsyth v. Hooper, 11 Allen, 419. If there was any evidence which could properly have been submitted to a jury, and upon which, if believed by them, they could legally find a verdict for the plaintiffs, the verdict could not be set aside as a matter of law. Heywood v. Stiles, 124 Mass. 275. The finding of the judge in this case stands in the same position as if it had been the verdict of a jury. There can be no doubt that, if the defendant had personally conducted the negotiation and made the purchase, the provision contained in the deed, that the premises were “ subject to a mortgage of six thousand dollars which the grantee assumes and agrees to pay, and save the grantor harmless therefrom,” would have rendered her liable for any sums of money which the plaintiffs were obliged to pay on account of the mortgage debt. Fiske v. Tolman, 124 Mass. 254. But the purchase was not made by the defendant personally. The negotiation was conducted by her husband in her absence, and it was by his direction that her name was inserted in the deed as the grantee. It appears from the report that the judge did not find it proved that she had given him any previous authority to make the purchase, or to cause the deed to be made to her, or that she ever saw the deed or any copy of it, or had any knowledge or notice of it, or of its contents, or of the implied promise to pay the mortgage, until after the foreclosure sale, when she repudiated it. The report also sets forth that it was not proved that she ever knew anything about the contract of exchange or purchase of the land; but, as it goes on to say that, soon after the deed was recorded, she knew that the land was conveyed to her by deed duly recorded, we must reconcile this seemingly contradictory language of the report, by interpreting it as meaning that she did not know of the transaction until after it was completed. Upon the assumption that her husband had no express or implied authority to bind her in the premises, we come to the question, Was the court authorized, as a matter of law, upon the facts reported, to find such a ratification and acceptance of the [558] deed as to make her liable upon the agreement implied in its acceptance ? It is one of the facts found at the trial, that she knew that the property had been conveyed to herself by a deed duly recorded, and that, inasmuch as she did not make the bargain herself, she knew that it had been made in her behalf by some person as her agent. There was evidence, received without objection, that her husband had in several transactions acted as her agent with her consent. Soon after the deed in this case was put on record, she claimed to be the owner of the property, and there was evidence tending to show, not only that she knew the existence of the mortgage, but had paid interest upon the mortgage debt. It is not suggested that the deed was concealed from her, or that any misrepresentation as to its terms was practised, or that she had not ample opportunity to inform herself as to its contents. The fact that the property had been conveyed to her was brought to her knowledge more than two years before there was any disavowal on her part. It is impossible to say, upon these facts, that there was no evidence which would authorize the judge to find that the defendant ratified and accepted the deed. Story on Agency, § 253. It is true that a contract made by one person as agent for another, without any antecedent authority, cannot be made binding upon the alleged principal by his ratification, unless that ratification is givón upon a full knowledge of all the circumstances of the case. Story on Agency, § 239. Dickinson v. Conway, 12 Allen, 487. Combs v. Scott, 12 Allen, 493. But it is equally well settled that the principal cannot, of his own mere authority, ratify the transaction in part, and repudiate it as to the rest. He must either adopt the whole or none. Story on Agency, § 250. It was impossible, therefore, for the defendant to accept the deed, and claim title under it, and to allow so long a time to elapse before any repudiation of it, without at the same time accepting the terms of the deed and the nature of the title which it purported to give. A party must be presumed to know the contents and true meaning of a written instrument which he takes as evidence of title. Freeman’s National Bank v. Savery, 127 Mass. 75. A majority of the court, therefore, concur in the opinion that there must be Judgment for the plaintiffs.