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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 om. ployed: Nice v. Walker, 153 Pa. St. 123; 34 Am. St. Rep. 688, and note Boe, 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 MORTGAGE.- A letter of
attorney with naked authority to sell and convey, unconpled 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 "coupled with an interest, does not confer power to mortgage, and a mortgage executed under
such a power is void. BUBROGATION—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 stranger, but only in favor of a party who, on sono sort of compulsion, discharges
a debt against a common debtor. SUBROGATION, VOLUNTEER—MORTGAGES. — A mere 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. Judgment for the plaintiff, and the defendant appealed.
John G. Johnson, for the appellant.
630 GREEN, J. After a laborious study of this case, and a 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 a 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
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 judge 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 Devinney 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.
In Story on Agency, edition of 1882, section 68, the author says: “Indeed formal instruments of this sort (letters of attorney) are ordinarily subjected to a strict interpretation, and the authority is never extended beyond that which is given in terms or which is necessary and proper for carrying the authority so given into full effect. Thus a power of attorney to sell, assign, and transfer stock will not include a power to pledge it for the 633 agent's own debt": 1 Jones on Mortgages, sec. 129. A mortgage executed under a power of attorney, authorizing an attorney to sell and convey only is void. Said Mr. Justice Cooley in Jeffrey v. Hursh, 49 Mich. 31: "J. M. Hursh had power to sell the land, but not to mortgage it. The power is not to be extended by construction. The principal determines for himself what authority he will confer upon his agent, and there can be no implication from his authorizing a sale of his lands that he intends that his agent may at discretion charge him with the responsibilities and duties of a mortgage: Wood v. Goodridge, 6 Cush, 117; 52 Am. Dec. 771; Albany Fire Ins. Co. v. Bay, 4 N. Y. 9; Ferry v. Laible, 31 N. J. Eq. 566; Kinney v. Mathews, 69 Mo. 520; Patapsco etc. Co. v. Morrison, 2 Woods, 395; Deraynes v. Robinson, 24 Beav. 86.”
In the case of a naked power, vot coupled with an interest, every prerequisite to the exercise of that power should precede it. A power to make and execute deeds to convey real estate, as the same may be sold to purchasers in tracts by a third party, is a naked power to convey as sales may be made, and a deed made otherwise is a fraud upon the power: Deputron v. Young, 134 U. S. 241.
As a general rule a power to sell and convey real estate does not confer a power to mortgage, and a mortgage ex. ecuted under a power of attorney to sell and convey is void. The court said: “The power of attorney in this case by Mary C. Hargin to Charles S. Hargin is a power to sell and convey only; therefore the mortgage executed by Charles S. Hargin to Moses Sherburn, under this power of attorney, is void ”: Morris v. Watson, 15 Minn. 212.
In the case of Wood v. Goodridge, 6 Cush. 117, 52 Am. Dec. 771, a power of attorney authorized the attorney, in the name and for the benefit of the principal, to buy and sell real and personal property, and to execute and deliver deeds, to transfer the same, to move and institute all necessary suits for the recovery and collection of his demands. .... Es
pecially to carry on his sawmill and buy and sell logs and lumber .... and in general to make such contracts for the profitable improvement and use of such property and other means as he possessed, for the enlargement of his estate. The attorney made a mortgage and note for a sum of money, and the question of his power to make them arose and was decided. The court said: “Levi Goodridge, who made the mortgage and note, had no authority under his power of attorney from Benjamin Goodridge to do these acts, so that the mortgage and note are both invalid and without any legal effect. In accordance with the general and well-settled principles of law, the power of attorney to Levi must be so interpreted as not to extend the authority given to him beyond that which is given in terms, or which is necessary and proper for carrying the authority expressly given into full effect. Now, the power of attorney in this case very clearly did not in terms give to Levi authority to mortgage the real estate of his principal; still less does it, in terms, give him the power to borrow money and to bind his principal by a promissory note. .... In the absence of all evidence that the money was in fact obtained for the principal, or that it was necessary for the execution of the authority given, there being no express authority to make a mortgage or negotiable note, there is an entire failure to show that Levi had any authority to make the note and mortgage, and the title of the plaintiff, being derived under that mortgage, wholly fails."
It is not necessary to quote further authorities for a proposition to plain in its character, and not opposed by any contrary decisions. As we have already said, the cases of Lancaster v. Dolan, 1 Rawle, 231, and those that follow it, are not pertinent to the discussion, because they depend upon different principles and upon facts which have no existence here. We are, therefore, brought to the consideration of the remaining question whether the appellant is entitled to subrogation to the six thousand dollars prior mortgage which was paid off with the proceeds of the mortgage in suit.
Upon that subject it is to be observed that the payment of the prior mortgage was the act of a mere volunteer. The plaintiff was not consulted about it and had no knowledge of it. There was no privity of any kind between the plaintiff and the defendant, and the latter was under no compulsion to make the payment for the protection of its interests. The payment was doubtless made so as to make its mortgage a