15 Colo. App. 69 | Colo. Ct. App. | 1900
In December, 1890, William Gorringe borrowed from Mrs. Harriet 1ST. Scudder, plaintiff herein, $1,500, executing his promissory note therefor of date December 29, payable one year after date, and with interest payable quarterly. Contemporaneous with this, and to secure the payment of the note, Gorringe executed a deed of trust, conveying to Alonzo Rice, trustee, one half of a block of ground in Sunnyside Addition to the city of Denver, comprising nineteen and one half lots. Rice was a loan broker, who conducted the
The contentions of defendant for a reversal of the judgment are substantially embraced in, and covered by, three general propositions : (1) that Mrs. Barker was an innocent, bona fide incumbrancer, without notice, and that, as between the two innocent parties, the superior equity is with her; (2) that the release by Rice was his act as Mrs. Scudder’s agent clearly within the scope of the apparent authority with which he was clothed, both by the terms of the trust deeds and by the course of dealings between them; (8) that Mrs. Scudder was guilty of such laches in asserting her rights as to defeat her claim to equitable relief. Both counsel, in exhaustive briefs, have discussed with much ability the legal questions underlying and involved in these propositions, and in support of their respective arguments have cited us to a very large number of authorities. We are relieved of any necessity of discussing these various cases and pointing out the nice distinctions upon which many of them turn. Whatever may be the rule in other states, and whatever may be the conflict of authority, the rule with reference to the piv
“It is undoubtedly true, and in this all the authorities agree, that a trustee by written instrument is clothed with no powers save those which are expressed in the writing, and if his authority to act is in any wise, or at all, dependent upon matters in pais, the parties dealing with the trustee are bound in the one case to see that the authority is expressly given by the instrument, and, in the other, that those facts exist which authorize the trustee to act.”
In the later case, this was quoted approvingly by our supreme court. Improvement Co. v. Whitehead, 25 Colo. 358.
In this case, the supreme court also says :
“ The powers of a trustee depend entirely upon the terms of the instrument appointing him, and no power is conferred unless expressed in the writing.”
In Bank v. Minor, 9 Colo. App. 367, the court said:
“ Without authority from the party for whose benefit the trust deed was given, the act of the trustee in releasing it was void.”
Applying this rule to the case at bar, it being undisputed that Mrs. Scudder did not authorize Rice to execute the release deed, it is clear that the deed was not effectual to discharge the incumbrance. It is true, that, strictly and technically speaking, the execution of the release deed was not in the exercise of a power expressly vested in the trustee by the deed of trust. The power specially given was to sell, in default of payment of the debt by the debtor, and this power could only be extinguished by payment. The authority to execute a release deed is, however, a necessary incident to, and dependent upon, this power. That which would destroy or defeat the power to sell would create the right or authority to release, which is simply a reconveyence by the trustee to the grantor of the title to the property after the fulfillment of the trust. It is only, however, after the trust is carried
It is contended, however, that the acts of Mrs. Scudder were such as to clothe Rice with apparent authority, as her agent, to do what he did, and that she is therefore estopped to deny it. This is largely a matter of fact, and the finding of the trial court.was to the contrary. We think the evidence fully supports the finding. It does not appear that Rice had anything to do with either of the transactions, other than what is usually done by a loan broker, namely, to prepare the papers and to collect the interest as it became due, paying it over to the principal. Neither was there any evidence that
Further, there is not the slightest evidence to show that Mrs. Iiarker relied upon the agency of Rice. On the contrary, it appears that she relied wholly upon the execution of the release deed by the trustee, who was the proper and only party to execute it, when it was permissible to be executed at all, and on the recitals, therein. We find nothing whatever in an examination of the entire record upon which to base the claim that Rice was the agent of Mrs. Scudder, except to prepare the notes and deeds of trust, and possibly to collect interest when due. Moreover, if there had been acts from which an agency might be implied, it was limited in this case by the writing itself, which constituted him an express agent, for the express purpose only of enforcing the deed of trust by sale, in case of default by the payor of the notes. For a discussion of this question of agency in cases similar in principle to this, we refer to Lester v. Snyder, 12 Colo. App. 352.
It is said, however, that the plan tiff was guilty of such laches in asserting her rights that she should not be entitled to the equitable relief prayed for. Mrs. Scudder was somewhat uncertain about the exact time when she first learned that Rice had executed the release deed, but feels quite sure that it was about June, 1895. This uncertainty of memory is probably accounted for from the fact, as we find it in the record, that she was a woman eighty years of age, a consideration which should certainly have some weight in a court of equity when equitable principles of estoppel are invoked.
The delay in the institution of the suit may be accounted for by the fact that Mr. Rice, as appears from the evidence, realizing that he had exceeded his powers, told her, to the effect, that in a short time he felt that he could certainly arrange matters so that she would get all of her money.
Further, it does not appear that Mrs. Harker suffered any loss by reason of delay in bringing the suit. Mrs. Scudder
It is further contended by the defendant that the recitals in the- release of the trust deed in controversy were conclusive, and that evidence contradicting these recitals was improperly received at the trial. In support of this, they rely upon a statute adopted in 1893, which reads as follows:
“ Sec. 1. The recital in any release or partial release of any deed of trust affecting the title to real estate in this state, of the payment or partial payment of the indebtedness secured b}T such deed of trust so released, when such release deed shall be executed before the maturity of the note or indebtedness so secured, shall be evidence of such payment, so as to give full effect to such release, if duly and legally executed by the proper trustee, according to the purport thereof, as to subsequent purchasers or incumbrancers of the property mentioned in such release deed, and of all such property or real estate, the title to which may be effected or sought to be effected by such release deed, to the same extent and with the same force as the release of any trust deed*77 or deed of trust when executed after the maturity of the note or indebtedness thereby intended to be released.
“ Sec. 2. All releases of deeds of trust or trust deeds heretofore or hereafter made in this state shall be good and valid as to the recitals therein, whether made to the original maker of said deed or to a subsequent purchaser of the premises in such release deed described.” Sess. Laws of 1898, p. 473; 3 Mills’ Ann. Stats, sec. 469 a, 469 b.
It will be observed that the release deed in question was executed, and whatever rights Mrs. Scudder might have to set it aside and cancel it arose long prior to the adoption of. this statute. It is not necessary, however, for us to determine to what extent the act was or is valid and effectual so far as it is retroactive and retrospective in its nature. However this may be, it is a fundamental principle of statutory construction that before a statute can be construed to be retroactive, even when permissible at all, the legislative intent to make it so must clearly appear from the express terms of the act. This is not the case in this instance, so far as applied to the facts before us. The first section of the act is the only one which provides that the recitals of a release deed shall be evidence of the payment of the debt secured by the trust deed, and it will be observed that it does not refer to or embrace release deeds executed before the enactment of the statute. It is the second section only which refers to the recitals in release deeds theretofore executed, and the manifest and evident purpose of this section is simply to provide that these recitals shall be as good and valid in a case where the release runs to-a subsequent purchaser of the premises included in the deed of trust as they would be had the release deed been executed to the original maker of and grantor in the deed of trust. The contention of defendant, therefore, in this respect is not tenable.
For the reasons given, we think the judgment was correct and should be affirmed. Such will be the order.
Affirmed.