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MoCollum v. RIALE.

(168 PENNSYLVANIA STATE, 603.) MECHANICS' LIENS. - SECRET AGREEMENT AGAINST. — A materialman who

furnishes material on the order of the record owner of land, without knowledge of a secret conveyance thereof to another, or of a verbal agreement between the vendor and purchaser that the former is to build a house on the land for the latter, and not to allow any mechanic's liens to be entered against it, is not bound by such conveyance or agreement, and is entitled to a mechanic's lien against the property. Action by McCollum against Riale and Messenger to enforce a mechanic's lien for material furnished in the erection of a house. Judgment for the defendants, and the plaintiff appealed.

W. M. Stephens, for the appellant.
H. T. Ames and T. H. Hammond, for the appellee.

607 McCollum, J. Four-fifths of the materials for which this claim was filed were furnished on the order of Mes. senger while he was the apparent owner of the lot, and all of them except the transom door frames were furnished before the materialman was informed that Riale had any legal or equitable title to or interest in it. All the appear. ances were in accord with Messenger's representations, when he ordered the materials, that they were for a house he was building on his lot on Park avenue. His deed for the lot was on record, and there was no visible change in his possession of it. There was absolutely nothing discernible any. where to suggest or in the remotest degree indicate any change in his relations to the property, or that in erecting a house upon it be was the representative or agent of another. In short, the record, the appearances, and Messenger's represen. tations to the appellant united in presenting the case of an owner of a lot ordering the materials for and erecting a house 608 upon it. But it is urged that the appellant is not entitled to a lien for his claim because: 1. In August, 1889, Messenger verbally agreed with Riale to sell the lot to him, and that in pursuance of this agreement a deed of it was made and delivered to the latter on the 5th of October following; and 2. That soon after the agreement to sell the lot he verbally agreed with his vendee to build for him a house upon it, and “not to allow any lumberman's or mechanic's lien to be entered against it." The agreement in respect to the

erection of the house was not reduced to writing and signed until September 26, 1889, or six days after the materials were orderei, nor was any thing paid on the lot until that time.

The appellant, whilst conceding the principles enforced in Schroeder v. Galland, 134 Pa. St. 277, 19 Am. St. Rep. 691, and kindred cases, contends that upon the facts above recited he is entitled to a lien upon the building for materials furnished and used in its construction. In considering this contention it must be remembered that when Messenger ordered the materials for the house he was the owner of the lot and his title to it was shown by the record. Riale had then no enforceable equity or claim in or upon the lot because the verbal agreement gave him none, and he had done nothing in pursuance of it which prevented his vendor from successfully repudiating it. Messenger's possession of the lot when he commenced the erection of a house upon it was in accord with his title, and BO were his representations that the materials he ordered were for a house he was building on his lot on Park avenue. What was there in the circumstances surrounding the transaction to suggest to the materialman the existence of an equitable interest or title in Riale, or any one else, or to put upon him the duty of further inquiry? Absolutely nothing. The case before us is therefore wholly unlike the cases relied on by the appellees, in which it is held that a subcontractor is bound by a stipulation against liens, in the contract between the owner and the principal contractor. In none of them is it held or suggested that a secret verbal agreement, such as is interposed here, will prevent or defeat a lien. They were cases in which the labor was done or the materials were furnished on the order of or under a contract with the principal contractor who was known as such, not, as in this case, on the order of, or under a contract with, the apparent owner. In then the subcontractor was chargeable with knowledge of the contract between the owner and the principal contractor, because he had an opportunity, and it was his duty to ascertain its terms before performing labor or furnishing materials on the credit of the building. In this case no such opportunity was presented or duty imposed. It is in accordance with equity that the subcontractor should be bound by the terms of the contract between the principal contractor and the owner, in the former case, and against it to hold him bound by the terms of the secret agreement relied on in this case to defeat the claim of the appellant.

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AX. ST. REP., VOL. XLIII, - 52

We hold, therefore, that the appellant is entitled to a lien for the materials furnished before he knew or ought to have known that such agreement existed.

To the extent that the rulings of the learned court below are in conflict with this opinion the specifications of error are sustained.

Judgment reversed, and venire facias de novo awarded.

MECHANICS' LIENS. — To prevent a contractor or subcontractor from filing a lien against a building there must be an express covenant against liens or a covenant resulting as the necessary implication from the language em. ployed: Nice v. Walker, 153 Pa. St. 123; 34 Am. St. Rep. 688, and note See, also, the note to Benedict v. Hood, 19 Am. St. Rep. 699, 700.

CAMPBELL V. FOSTER HOME ASSOCIATION.

(163 PENNSYLVANIA STATE, 609.) POWER OF ATTORNEY TO SELL_AUTHORITY TO MORTGAQE.- A letter of

attorney with naked authority to sell and convey, uncoupled with any interest in the land or fund, does not authorize the attorney in fact to

execute a bond and mortgage in the name of the principal. PowerS OF ATTORNEY ARE STRICTLY INTERPRETED, and the authority is

never extended beyond that which is given in terms, or which is neces.

sary and proper for carrying the authority so given into full effect. POWER OF ATTORNEY TO SELL_AUTHORITY TO MORTGAGE.-A power of

attorney to sell and convey real estate, not 'conpled with an interest, does not confer power to mortgage, and a mortgage executed under

such a power is void. SUBROGATION—RIGHT OF VOLUNTEER TO.—A mere volunteer who, without

any duty, moral or otherwise, pays the debt of another, is not entitled to subrogation. Subrogation does not arise in favor of a stranger, but only in favor of a party who, on soine sort of compulsion, discharges

a debt against a common debtor. SUBROGATION— VOLUNTEER—MORTGAGES. — A mero volunteer who pays off a

mortgage without the knowledge or consent of the mortgagor is not entitled to be subrogated to the rights of the mortgagee under his mortgage. Bill in equity for the cancellation of a mortgage. Judge ment for the plaintiff, and the defendant appealed.

John G. Johnson, for the appellant.
T. Hart, Jr., and J. G. Lamb, for the appellee.

680 GREEN, J. After a laborious study of this case, and & most serious consideration of the elaborate and exhaustive arguments of the learned counsel on both sides, we are con

strained to say that we think the case was correctly decided in the court below. On the question whether the letter of attorney from the plaintiff to her attorney in fact, Robins, dated December 26, 1888, is to be construed as conferring & power to mortgage the premises in question, we are quite clear as to the correctness of the decision made both by the master and the court below. It is true 631 the precise question does not seem to have been before us heretofore, but we are convinced that the considerations which prevailed in Lancaster v. Dolan, 1 Rawle, 231, and its train of cases, resulting in the declaration that a power to sell land includes & power to mortgage, are entirely inapplicable in the interpretation of a mere letter of attorney with a naked authority to sell, uncoupled with any interest in the land or the fund.

The instrument now in question was essentially of this latter class. So far as this matter is concerned it is in the following words: “Do make, constitute, and appoint William B. Robins of said city, attorney at law, my true and lawful attorney, for me and in my name, to grant, bargain, and sell in fee simple all real estate owned by me, including all ground rents, on such terms and for such prices as he may see fit, and to make, execute, and deliver all necessary deeds and assurances to the purchasers, and to assign all policies of insurance on said properties or with said ground rents.”

It cannot be questioned that this is but an ordinary letter of attorney to sell real estate in fee simple. It is nothing but a naked authority to sell and make deeds to the purchasers, without any interest whatever in the proceeds, without any power to invest the same, or to exercise any kind of control over them. There was no power to raise money for any trust, or to pay debts or charges, or to provide a fund for any charitable or other purpose, or for the support of any third person. In short, there was no power of any kind whatever to do more than simply to sell the property and to make deeds to the purchasers.

Under this narrow, specially defined, and closely limited authority the agent executed a bond in the name of his principal for the payment of seven thousand five hundred dollars, and to secure the payment of the bond he executed a mortgage of her real estate, also in her name, and thereby made her a debtor in a large sum, when his only authority to act for her was to sell her real estate and bring her the proceeds. Instead of being the seller of real estate in the en

joyment of the fruits of the sale, she was converted into a debtor with all the duties and obligations which that relation implies. We do not know of any doctrine in the law of principal and agent which will permit such a result to be accomplished in such a mode. The books abound with endless decisions which are in utter hostility with such a transaction as a valid act.

632 Being a debtor the plaintiff would be subject to an obligation to pay, not only the principal sum of seven thousand five hundred dollars, but also annual sums of interest. For failure in her payments she would become personally liable for the moneys due, and be subject to a general judg. ment which would be a lien upon all her real estate, and upon which process of execution might issue and be levied upon her personal property. In point of fact, a warrant of attorney for the entering of judgment against her for the debt was contained in the bond executed in her name by her attorney, under an authority which gave him only a bare right to sell her lands. It is not credible that the citizen can be held subject to such consequences, so entirely inconsistent, unexpected, and hostile to his express intent, in an instrument of such a character. Whatever else may be said of such a paper, it must be conceded that, in its terms, and in its legal substance, it is a plain, simple letter of attorney establishing the relation of principal and agent between the parties to it. It must therefore be regarded as subject to the rules and requirements of that branch of the law in any event, and if these will not permit it to be used for an ulterior purpose such as is claimed in the present case, then it cannot be so used.

Regarded simply as a letter of attorney establishing an agency, the law concerning it is very clear. Thus, in Derinney v. Reynolds, 1 Watts & S. 328, Mr. Justice Rogers, delivering the opinion, said: “An agent constituted for a particular purpose and under a limited power cannot bind his principal if he exceeds his power. A special power must be strictly pursued, and whoever deals with an agent constituted for a special purpose deals at his peril when the agent passes the precise limits of his power." This was said of a deed made by an attorney in fact who was authorized to convey a tract of land after he had redeemed it, and he conveyed it without redemption, and it was held the purchaser took no title.

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