Berry v. Marshall

LUdeling, C. J. This is a suit against the maker on a note secured by a mortgage. The defense is payment and the plea that the mortgage had prescribed by non-reinseription within ten years. As the suit is against the defendant who is in possession of the mortgaged premises, we do not perceive what difference it would make to defendant if the mortgage bad perempted. It can not be prescribed so long as tbe primary obligation exists. But tbe mortgage had not perempted, as ten years bad not run since its registry. On tbe trial, tbe defendant offered a j>rivate agreement between himself and bis father, tbe husband of the plaintiff, for tbe purpose of proving tbe agency of tbe plaintiff’s husband and authority to receive payment on tbe note, which was objected to and excluded on tbe ground that it was res inter alios aeta and totally irrelevant. Tbe ruling was correct. Defendant offered tbe testimony of J. U. Payne, taken by commission, to prove that tbe firm of Payne, Huntington & Co. bad paid Roger B. Marshall one thousand dollars, as the agent of his wife, by sanction of defendant, which was objected to as irrelevant. Tbe objection was sustained, and tbe testimony was rejected. We think tbe judge a qtio was right in saying tbe evidence was irrelevant, for, admitting tbe firm aforesaid did pay tbe sum stated to t))e husband, supposing him to be tbe agent of bis wife and authorized to receive tbe money, that does not prove the fact in question — the authority of tbe husband to receive the money for his wife. She was separated in property from her husband and had the administration of her own affairs, and the money paid to her husband is not shown to have inured to her benefit; in fact, the contrary is sworn to by the wife, and the note was not in the possession of the husband. Pinckney v. Mulhollon, 6 R. 40; 10 M. 310; 4 An. 526, Pew v. Labythe et al. [245] Another bill of exception was taken to the ruling of the judge a quo, excluding’ the testimony of William Taliaferro and Thomas D. Marshall, offered to prove that plaintiff’s husband acted as her agent in paying taxes and other debts and in collecting notes and other' debts due by her. We fail to discover tho value of this evidence, if it wore in the record. Because A has authority to collect a certain note or a dozen notes due B, it does not follow that ho has a right to collect any other notes, not in Ms possession or under his control. An authority derived by implication can not be extended. The possession of the note is the authority of the agent to collect it, if he act under an implied and not an express mandate. There is no error in tho judgment. It is therefore ordered that the judgment of the court a qua be be affirmed, with costs of appeal.