131 Wis. 152 | Wis. | 1907
So far as the findings are concerned, to the effect that Hinkley paid the mortgage indebtedness to C. W. Milbrath on the faith of the mortgage appearing of record in the name of Wilhelm Woldt and a power of attorney thus appearing authorizing Milbrath to loan money upon mortgages and to release, satisfy, or assign all notes and mortgages owned by Woldt and to collect all rents and lease, sell, and convey all real estate and personal property and to perform other acts for and in the name of said Woldt, whether they are open to successful attack as contrary to the clear pre-
The evidence is undisputed that the official records, at the time Hinkley paid the money to Milbrath, showed that the-mortgage was outstanding in the name of Woldt and that C. W. Milbrath was his attorney to do the things heretofore mentioned. It is also undisputed that interest on the note, as the same became due, was for many years paid to Milbrath and by him paid to the one entitled thereto on production of' the paper, and that Hinkley and his agent, supposing from the-state of the record that Milbrath possessed authority to receive-payment of the principal of the note and to discharge the mortgage, made such payment and received a release of the mortgage, as stated in the findings. Whether Hinkley was-warranted in relying on the record, as he did, is the first question to be determined.
Counsel for respondents in support of the affirmative of' the proposition stated cite Marling v. Nommensen, 127 Wis. 363, 106 N. W. 844; Friend v. Yahr, 126 Wis. 291, 104 N. W. 997; and Mason v. Beach, 55 Wis. 607, 13 N. W. 884. A brief analysis thereof will suffice to show that they do not apply to the situation before us.
In Mason v. Beach, the discharge of the mortgage was made-by the plaintiff pending foreclosure thereof after he had transferred his interest to another who concealed the transaction. The court held that, under the statute permitting am action after the transfer of the plaintiff’s interest to be continued in his'name or in the name of the assignee, in case no-'substitution is made, as to persons having no notice of the transfer, the plaintiff is to he regarded as possessing authority to deal with the subject of the litigation as owner thereof. No-comment is necessary to show that such doctrine does not rule this case.
In Friend v. Yahr, the plaintiff dealt with the real estate-
“A person taking a mortgage from the payee will not be held chargeable with notice that the notes secured in the first mortgage have been assigned, but he may rely upon the record, as showing title in his mortgagor.”
On the question of whether the mortgage discharged was extinguished as between the owner thereof and the payor the case turned on whether the record, but not the real, owner who made the release had possession of the securities with authority to collect the indebtedness at the time payment was made.
In Marling v. Nommensen, the person claiming that effect should be given to a release of a mortgage by the record owner dealt with the real estate by purchasing the same on the faith of such release. That involved the question decided in the first branch of Friend, v. Yahr. The mortgage indebtedness had been paid to such record owner after he had assigned the note and mortgage and parted with possession thereof to another, who failed to record his assignment, as in this case. These contentions were made: first, the debt secured by the mortgage is paid and the mortgage therefore extinguished; second, the defendant is entitled to protection by the recording act in dealing with the realty, as he did, in the belief that the release of the mortgage was duly authorized. The court said as to the first proposition it “is fully negatived by our former decisions. The maker of a negotiable promissory note cgn satisfy it only by. payment to the owner at the time or to such owner’s authorized agent. If the recipient of the money
Erom the foregoing it seems plain that ITinkley was inexcusably negligent in paying the mortgage indebtedness to Milbrath, relying for the latter’s authority solely on the condition of the record as regards the ownership of the securities and the authority of Milbrath. If the payment had been made to the record owner himself after he parted with the title and possession of the securities it would not, as we have seen, have worked any prejudice to the appellant as regards the maker of the note or person liable for the indebtedness. Payment of the indebtedness to be efficient to extinguish the mortgage could only be made to the owner of the securities or his authorized agent, and authority of the agent could not be implied except from possession by him of the securities. In Bartel v. Brown, supra, the court thus declared the law to be:
“The importance of protecting the holders of commercial paper is so great that to warrant finding that a person who assumes to have authority to receive payment of the principal*158 -sum on any sncli paper, lias such, authority, possession of the paper itself by such person, or proof aliunde of express authority, is indispensable. ... If money be due on a -written security, it is the duty of the debtor to see that the person to whom he pays it is in possession.of the security. . . . The payor is negligent if he relies on anything less, and must abide the event of being able to establish, by clear and satisfactory -evidence, an express agreement between the holder of the se-curity and the supposed agent, authorizing the' latter to represent the former in the transaction.”
So it will be seen that implied authority of Milbrath to receive the money from Hinkley for the owner of the note and mortgage could be based only on possession by him of the securities and capacity to deliver the same upon payment being made. It being conceded that he did not have such possession, payment to him did not affect the right of appellant, as to the payor, unless the appellant expressly authorized Milbrath to receive the money for him.
Whether the learned trial court grounded the judgment wholly on the theory that Hinkley was, by the recording act, warranted in treating Woldt as owner of the securities and Milbrath as entitled hr represent him does not appear with absolute clearness. After finding in detail all the facts bearing oh that phase of the case the court found that plaintiff permitted Milbrath to represent himself as having authority to do what he did, and that he and his company had for many years acted as plaintiff’s agent in loaning money upon notes and mortgages and receiving payment of principal and interest thereon, á regular account being kept between them of the transactions, and that payment was received from Hinkley 'by Milbrath and credited by him to appellant on his company’s books, but without appellant’s knowledge. If that means no more than that appellant permitted Milbrath to represent himself as authorized to do what was done because of neglect to put the assignment on record, it is immaterial, as we have seen. The finding is somewhat ambiguous, as we read it.
The presumptions are rather against the existence of error than in favor thereof. Edwards v. Smith, 48 Wis. 254, 3 N. W. 758; Heer v. Warren-Scharf A. P. Co. 118 Wis. 57, 64, 94 N. W. 789. Error must clearly appear to' be efficient to, disturb the decision of a trial court. So we should approach the consideration of such a question as that in hand from the viewpoint that the leaning should be towards supporting rather than defeating the judgment, while not hesitating to do the latter for prejudicial error efficiently appearing.
In construing an ambiguous finding the same rule should prevail as in the construction.of a contract or a law. That one of two or more reasonable probable meanings of the language used should be adopted which will make the same material and will support the judgment rather than one which will defeat it, and in solving the matter resort should be had to the evidence dealt with by the finding.
Here, as before indicated, all facts relating to the record and the question of whether the situation in that regard gave Hinkley good ground to make the payment to Milbrath as agent of Woldt, were covered before reaching the finding in question. There was left to be considered the evidence tending to show that Milbrath was authorized by appellant to act for him in receiving payment of the mortgage indebtedness. Now the indications are pretty strong that the court did not intend to go any further by the finding under discussion than to decide that appellant held Milbrath out as having authority to do what he did. Whether the language used would admit, reasonably, of a different construction un
It is contended that authority in fact for Milbrath to receive the money from Hinldey for appellant was shown by the evidence. So we should examine the record and determine, under the established practice, whether the case can be finally disposed of upon the appeal even if the vital question was* not passed upon below., In such situation if the record discloses with reasonable and satisfactory certainty a preponderance of evidence in favor of the existence of the fact essential to support the judgment it may be found here accordingly and the litigation terminated the same as if there were a finding on the point by the trial court. Brown v. Griswold, 109 Wis. 275, 280, 85 N. W. 363.
While express authority from appellant to Milbrath to receive the money from Hinldey is essential to defeat the former’s claim it is not necessary that such authority should appear in writing or be established by direct evidence. Therfe is evidence undisputed to the effect that appellant obtained several notes and mortgages from Milbrath or his company besides the one in qrrestion and that in all such cases both the principal and interest had customarily been paid to Milbrath or said company as collector for appellant and the money then paid over to him when he called therefor and produced his papers. The evidence is also all one way that interest on the note in suit was, during a period of over ten years, collected and paid over in that way and that business between Milbrath and his company and the appellant was carried on in such way for some twelve or fifteen years. Milbrath testified substan
The result of the foregoing is that the mortgage in suit was extinguished by the payment made by Hinkley’s agent to Milbratb, and that the judgment should be affirmed.
By the Oourt. — So' ordered.