92 N.J.L. 487 | N.J. | 1918
The opinion of the court was delivered by
In this case the plaintiff brought a suit against the defendant to recover one thousand dollars and interest, the amount due on a bond and mortgage made by one Herbert to the plaintiff, covering premises in Atlantic City. The trial judge directed a verdict for the defendant. This is the basis of the appeal, which is from the judgment entered on the verdict. The substantial facts are not in dispute. They may be thus summarized. They are these: The plaintiff inherited one thousand two hundred dollars from her mother’s estate. One Thomas Tobin, of Philadelphia, collected it for her and turned it over to her; at that time he suggested that she invest one thousand dollars. The plaintiff agreed to this. Tobin then took one thousand dollars of the money and invested it in a bond and mortgage, in plaintiff’s name, on property in Atlantic City, New Jersey. After the mortgage was recorded he
This court said, speaking through Chief Justice Beasley, in the case of Lawson v. Nicholson 52 N. J. Eq. 821, if the agency claimed existed, i. e., from the possession of the bond and mortgage, it must have been by imputation of law from the circumstances incident to the transaction. It is deemed, that it is at all times to be regarded as a fact, to be ascertained Joy a construction of the given circumstances, and not, as
It may not be amiss to refer, as the respondent seems to rely upon it, to a statement made by Chancellor Runyon, in the case of Haines v. Pohlmann, 25 N. J. Eq. 179, to the effect that an attorney from his having possession of a bond and mortgage is empowered to receive both principal and interest, and a like statement made by Vice Chancellor Van Fleet in the case of Halsted v. Colvin, 51 Id. 387, 397, 398, in which the learned Vice Chancellor cites with approval the case of Collins v. Gilbert, 94 U. S. 760, in the United States Supreme Court, applied to negotiable instruments. But, in that case, however, he was careful to observe that a mortgage possesses none of the distinctive qualities of negotiable paper. Its possession by any other person than the mortgagee or his assignee furnishes no evidence of title. On the contrary, the paper itself shows on its face that its possessor is not its owner. The title to a mortgage can only be transferred by assignment or by operation of law. It is sufficient to say that both of these cases were decided in the Court of Chancery, which is not binding on this court; also they were both decided before the case of Lawson v. Nicholson, supra. This court, by not adopting the rule contended for in those cases, either disapproved of that rule, if not directly, at least, inferentially. Then, too, the facts were unlike those in the case-of Lawson v. Nicholson, supra, and the case now under consideration. We think
For affirmance — Rone.
For reversal — The Chancellor, Chief Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner, JJ. 14.