Gaylord v. Stebbins

By the Qourb, Safford, J. This was an action brought by the defendants in error against the plaintiffs in error, on a note and mortgage. Thepetition alleged the execution of the note by William F. Gaylord, and that in order to secure the payment thereof, the said William F. Gaylord, together with all of the other defendants, duly executed and delivered to said Stebbins and Porter their certain deed of mortgage of certain real estate described therein, which said deed of mortgage had a condition thereunder written, to wit: “That if the said William F. Gay-lord should pay the said promissory note according to the terms thereof, then said deed to be void; otherwise to be and remain in full force and effect.” To this petition, defendant, William F. Gaylord, filed his separate answer, denying that the defendants ever conveyed or mortgaged the real estate in the plaintiffs’ petition described; and he also plead usury. The defendants, William B. Fenn, Jane R. Gaylord .and Susan B. Gaylord, also filed an answer denying for themselves that they ever conveyed or mortgaged the said real estate, as described in plaintiffs’ petition, or any part thereof, or that they authorized it to be done, but alleging that they were jointly interested in said real estate as owners and tenants in common. They also set up a plea of usury. The answers were not sworn to. [46] To these answers of the defendants, the plaintiffs interposed a general' denial. Upon the issues thus made up the parties submitted to a trial by the court, and without the intervention of a jury. The court held that inasmuch as the answers were not verified, the execution of both the note and mortgage was not put in issue by the pleadings, and that no evidence was necessary to be introduced by the plaintiffs to sustain the allegations of the petition in that respect. We think the court was right. It is true the defendants attempted, by their answers, to put in issue at least the execution of the mortgage, and if their answers had been verified, they would have done so. But failing in this, the execution of both note and mortgage was so far admitted as to render it unnecessary for the plaintiffs to offer evidence to prove such execution. Such is clearly the effect which § 1, ch. 30, p. 235, Comp. Laws of 1862, has and was intended to have upon pleas putting in issue the execution of written instruments. In this case, therefore, the'plaintiffs were not bound to produce the mortgage on trial for the purpose of showing that it had been executed as alleged. Nor was the rule here referred to at all changed or affected by the fact that the mortgage purported to have been executed by one of the parties for himself, and by the same party, for the rest of the defendants, under a power of attorney. The plaintiffs were not bound, under the pleadings and under the law applicable to such cases, to produce, .on the trial, such power of attorney. Under these rulings of the court, the plaintiffs offered no testimony as to the points above referred to, but proceeded to offer the mortgage in question as evidence, to prove that the land, mentioned and de [47] scribed in the petition, was the same as that described in the mortgage,, and then rested their-case. The record shows that the defendants then asked leave to introduce certain powers of attorney, and to prove that the same were the powers of attorney under which the defendant, William F. Gaylord, executed said mortgage as attorney in fact for the other named defendants, and that he held no other authority to do so,' except as in said powers of attorney was given, for the purpose of showing that, in truth and in fact, the said mortgage was executed by said William F. Gaylord as attorney in fact of the other defendants, without authority so to do. But the court refused to allow such powers of attorney to be introduced as evidence, and refused to consider the same. Thereupon the defendants asked leave of the court to amend their answers in the case, by verifying the same by annexing the proper affidavits. This was refused by the court. And to both of the last-named rulings of the court the defendants duly excepted. We think that, under the circumstances of the case, as shown by the record, the court ought to have permitted the amendment. The powers of attorney under which the mortgage was executed, for and in behalf of the rest of the defendants, by William F. Gaylord, were exhibited to the court when the defendants offered to read them in evidence, for the purpose above stated, and as set out in the record. They show upon their face that the defendant, William F. Gaylord, had no.right or authority under them to execute the mortgage, as he assumed to do, and as a consequence such mortgage was not binding upon the défendants, other than’ himself. It is clear, therefore, to our minds, that the allowance^ [48] of the amendments asked to be made by the defendants, was calculated to promote justice between the parties, and that the powers of attorney should have been received in evidence and considered by the court. ‘ From what has been said, it will;¿be seen that we hold that a power of attorney which in terms authorizes a sale and conveyance'only, does not authorize the attorney to mortgage the property. And this proposition is, it seems, too plain to require argument. By reference to one of the powers of attorney in this case, it will be seen that it purports to be[executed by a guardian of minor children. It is, perhaps, not material to this case, but as the question as to the power of the guardian so to do is raised in the argument, we may be allowed to dismiss it with the single remark that we think no such power exists under the law. The judgment in this case is reversed, and the cause remanded, with instructions to grant the motion for a new trial. All the justices concurring.