53 Neb. 786 | Neb. | 1898
In lier petition filed in the district court of York county Helen W. Chandler prayed the foreclosure of a certain trust deed for the security of a certain negotiable promissory note of date April 1, 1889, by its terms due April 1, 1894. The payee named in this note was the Western Investment Bank of Chicago. The interest, at the rate of seven per cent per annum, was payable in semi-annual installments on the first days of April and October, respectively, as evidenced by coupons for $73.50 each. To secure the payment of said note and interest the makers thereof, Martha Pyott and James Pyott, executed a trust deed to William P. Kimball, by the terms of which, as trustee, Kimball was authorized, upon default of. pay
William P. Kimball was president of the Western Investment Bank of Chicago until May 3, 1891, when said bank transferred its bankable assets to the Central Trust & Savings Bank. To close up the affairs of said Western Investment Bank its cashier, Mr. Yose, and James Frake were constituted a. committee and so acted. After the transfer of the banking business above noted William P. Kimball conducted a loan business until August, 1893, when he failed. His testimony was to the effect that he never learned of the payment of the $1,073.50 above noted until his financial embarrassment did not admit of his making payment of the money to Mrs. Chandler. It is clear that, as trustee, Mr. Kimball was not authorized to receive payments unless they were made upon foreclosure proceedings instituted • by him as trustee. The powers of the trustee Avere thus limited by the trust deed, and beyond this limitation the trustee as such had no power to act. (Stark v. Olsen, 44 Neb. 647.) Ilis authority to receive the payment, concerning Avliich this litigation has been carried on, if it existed, must therefore be found in-his real or apparent agency for Mrs. Chandler, independently of his trusteeship. The testimony on behalf of Mrs. Chandler was that there was never such an agency, either real or apparent. Mr. Kim-ball testified that when the bank sold the note to Mrs. Chandler it was agreed between herself and himself that
Reversed and remanded.