Morris v. Watson

McMillan, J. By the Court. The complaint alleges that the conveyance in this case to Mary C. Hargin, by Moses Sherburne, trustee, was made pursuant to the provisions of the act of the legislative assembly of the territory of Minnesota entitled “An act prescribing rules and regulations for the execution of the trust arising under the act of Congress entitled an act for the relief of citizens of towns [215] upon lands of the United States under certain circumstances, ” approved March 3d, 1855. It must be presumed that Mary C. Hargin was the occupant and beneficial owner of the lands conveyed by 'the trustee, since occupancy by the beneficiaiy under the town site law was necessary to entitle her to the deed. Carson et al. vs. Smith et al., 12 Minn., 563. The trustee, the grantor in the deed, and his representatives are estopped to deny that fact in a proceeding of this kind. It is the general rule of law that a power to sell and convey real estate does not confer a power to mortgage. The power of attorney in this case, executed by Mary O. Hargin to'Charles S. Hargin, is a power to sell and convey only; therefore the mortgage executed by Charles S. Hargin, to Moses Sherburne under this power of attorney, is void. But it is claimed by the plaintiffs that “ Sherburne, the trustee, had a lien or charge upon the lands deeded by him to Máry C. Hargin, and mortgaged back to him for the amount of money expended by him, and for the services performed by him as trustee in the acquisition of the title to said land, and in the administration and execution of the trust relating thereto, amounting to $148; that the trustee refused to deliver the deed to Mary C. Hargin until said, sum should be paid or secured by the execution of the note and mortgage, and that the said note and mortgage were executed and delivered to Sherburne, by Mary C. Hargin, through her agent Charles S. Hargin, at the same time that the deed was delivered by Sherburne tp Mary C. Hargin; that the delivery of the deed, and the receiving back of the mortgage, was, therefore, one transaction, and in the judgment of the law, the mortgage is as much a part of the deed, as though it were incorporated in it, and by the deed and [216] mortgage, Mary C. Hargin’s interest in the land, is an estate upon condition, the condition being that she will pay the amount secured by the mortgage. The mortgage is the meáns by which she acquired a title to the land, and she cannot hold the land and repudiate the mortgage. ” Unfortunately for the plaintiffs, there are several fatal objections to the application to the facts in this case, of the principle invoked by the plaintiff’s counsel. There is no allegation of fraud upon the part of Charles Si Hargin or Mary C. Hargin; the delivery of the deed by Sherburne, therefore, was entirely voluntary, and he cannot claim that it was not valid. Authority to mortgage real estate can only be conferred by power of attorney; in this instance no valid power existed. The mortgage, therefore, as to Mary C. Hargin was absolutely void; the deed, therefore, was not affected by the mortgage, but entirely independent of it, and Mary C. Hargin would hold the land described in the deed discharged of the lien of the mortgage. If as to Mary O. Hargin the mortgage was void, and the plaintiffs have no rights under it, of course one who has purchased from her in good faith can be in no worse condition. The action being-brought to foreclose the mortgage, the complaint does not state facts sufficient to constitute a cause of action. It is not necessary to consider any further questions which may arise. The order sustaining the demurrer is affirmed.