Foster v. Paine, 56 Iowa 622

Foster v. Paine

56 Iowa 622 | Iowa | 1881

Adams, On. J.

^auooüaUou : attorney!1’oI -The question presented arises upon the construction which should be given to the power of attorney. Was 'it the plaintiff’s intention, as evidenced by the instrument, to abandon or retain his security upon the land? If the latter the attorney had no power to cancel the old mortgage without taking a new one upon the land.

It is certain that the attorney was to take a new mortgage upon something. But no other land is indicated, even by the remotest reference, nor is the attorney vested with any power to determine the sufficiency of a new security. It cannot be supposed for a moment that the plaintiff was will*624ing to abandon tbe old security for a new one without any regard to the sufficiency of the new one. The absence, then, of any power to determine the sufficiency of a new security is a significant circumstance. If the intention had been to exchange the old security for a new one not already agreed upon, the proper and most natural way of expressing the power would be to authorize the cancellation of the old mortgage upon other and sufficient security being offered.

It is true it does not appear from the power of attorney that Draper had become the purchaser of the land covered by the old mortgage, and Without being such purchaser of course he could not properly mortgage that land. It is not possible therefore to say absolutely, looking at the power of attorney alone, that the attorney was to take a mortgage from Draper upon that land. But this we may say, that the power of attorney is consistent with the supposition that Draper had purchased the land. Indeed, we think the inference would be that it was given upon that supposition. Having reached this conclusion it is safe to say that the meaning of the power of attorney is, if Draper had purchased the land, that the new mortgage was to be given upon it. With the fact of purchase conceded, what would be uncertain without it becomes reasonably certain.

The conclusion reached is strengthened by the fact that the new mortgage was to be of the “same terms” and “in place” of the old one.

In our opinion the demurrer should have been overruled as to Paine as well as the other defendants, and a decree of foreclosure entered as prayed.

Reversed.