119 Ala. 290 | Ala. | 1898
The Loan Co. of Alabama, a corporation under the laws of this State, located at Selma, which will be referred to as the Alabama company, was engaged as a broker or middle man negotiating loans on real estate and mortgages thereon, and in acting as such for resident and non-resident persons and corporations in and about lending money, receiving reasonable commissions for its services, such as were authorized by its charter, to be paid by the lender or borrower, as might be agreed on in each particular case. Among the companies from which it sometimes obtained money in placing loans was the appellant company, the Land Mortgage Investment and Agency Company of America, Limited, of London, England, hereafter referred to as the London company. In conducting its business, the Alabama company had its correspondents in different counties of this state, who sought or ascertained parties desiring to secure loans on their farm lands, especially, and who acted as broker between the borrower and the Alabama company, and among these Avas J. W. Y. Manghen, of Ozark, who acted in this capacity in Dale county. The Alabama company acted, in securing the loan in this case, not for the London company, as it contends, but as agent for the borrower, Paul H. Preston, and the said Manghen, as is' the contention of the appellant companies, did not act as the agent of either of said companies, but for the borrower, Preston. Neither the borrower, Manghen, nor the Alabama company, as the evidence satisfactorily shows, at the time of the application for said loan, nor during the preliminary negotiations therefor, knew with what person or with what loan company, as lender, the loan, if effected, would be placed. Neither in that time, ever had any correspondence or negotiation with the London company about the loan, and the latter company knew nothing about the proposed loan, and the proposed borrower, until all the papers had been pre
The said Preston filed this bill to remove said mortgages and deeds as a cloud on his title to said lands, of which he is in possession, on the ground, in short, that he has never received the loan or any part thereof ; that said Manghen was not his agent in procuring said loan, but the agent of said loan companies, to which he gave no authority to pay the money to said Manghen for him. The respondents allege that Manghen was the agent of complainant to receive said money, and if he misappropriated it, it was not the fault of respondents, but the misfortune of complainant for which respondents are not liable.
In the cases of Edinburgh-American Land Mortgage Co. v. Peeples, 102 Ala. 241, and American Mortgage Co. of Scotland, Limited, v. King, 105 Ala. 358, we considered and passed on the liabilities of the respective loan companies, on account of the embezzlement of this same Manghen of the loans effected by him for Peeples and King in those cases. In each of those cases, it was shown that the applications of the borrowers contained the provision : “I agree to pay J. W. V. Manghen, as my attorney, a reasonable fee for taking this application, conducting correspondence, and making ample abstract of
The alleged application in the present case contains this identical agreement, except that the reasonable fee the lender agreed to pay Manghen is named at $10. This agreement is marked C, as an exhibit to the deposition of W. B. Nelson, a witness for respondents. In addition, there are exhibits A, B and D to said deposition introduced by respondents', each purporting to be signed by the borrower, Preston, in and about procuring said loan. The complainant objected to the introduction of each of these papers, on the grounds that they were not self-proving, because their execution by complainant had not been proved, and because they were not competent evidence. A purports to be the oath of the appellee to an application to the Alabama company to procure for him a loan of $500 on his said lands, representing himself as their owner, stating that the statements of his indebtedness as made to his agent, Manghen, and the other statements therein, were true. B, to be a contract with the Alabama company by the appellee, agreeing to pay them certain sums annually if the company succeeeded iñ 30 days in procuring the loan. C, to be an agreement of appellee with said Manghen, agreeing to pay him as attorney of appellee a fee of $10 for taking the application for the loan, conducting the correspondence and making a complete abstract of title to his lands and receiving and paying over the money and all such work in connection with the loan, and I) to be an affidavit by the appellee, reciting the giving of his mortgage to the London company; that his abstract of title was correct; that he had a perfect title, free from lien or incumbrance, &c.
Without the contract, marked exhibit C, there would not appear to be any authority for the Alabama company to pay over the money to Manghen, and if said contract is not a forgery, but was signed by the borrower, it would follow, he will have to share the same misfortune that befell Peeples and King in the other cases. The only question we have for decision, therefore, is as to the Alabama company, whether said contract is a forgery or not. The burden of proving the execution of said con
A great many witnesses were examined on each side, and the chancellor rendered his final decree granting the prayer of the bill, and declaring the mortgages on the complainant’s land to be of no effect, and ordering their cancellation.
The evidence is sufficiently clear, not to leave it in doubt, that Manghen was not the agent of either of said companies, but was the agent of complainant for procuring the loan, for which complainant agreed to pay him the sum of $10. The London company never heard of Manghen or the complainant before it was asked to make the loan by the Alabama company, on the papers passed and presented by that company. He was the correspondent, merely, of the latter company in and about such loans as he might be engaged to make by parties in Dale county desiring them, and he looked to them, and not to the Alabama company or the company that might lend the money, for his compensation. The papers marked A, B, C and D were such as was usual in and about procuring such a loan by any borrower.
It is averred in the bill that complainant, “being desirous of obtaining a loan, and seeing an advertisement óf said Manghen in the Ozark Star, did make application to him for a loan of money of $250.90 ($500); that said application was made to the said J. W. Y. Manghen, as the agent of said Loan Company of Alabama,” and as a result, he executed the two mortgages in question. He further states, “that acting upon his faith and confidence in said Loan Company of Alabama and its agent, J. W. V. Manghen,” he executed and delivered said mortgages. He says in his first deposition, “I never agreed to pay Manghen anything. I see no contract appended to my bill, wherein I agreed to pay Manghen anything. I do not remember all that was comprised in the application for the loan. The reason Manghen was not my agent was, that he represented himself to me as the agent of the loan companies. I do not know why Manghen did not read them to me. I think I read all the papers myself that I signed. I will swear that I did agree to'
These averments in bis bill, and these answers to interrogatories propounded, tend to show that complainant did make application for this loan in some shape, either verbal or written, and that be is confused and indefinite in bis recollection of what really did occur.
Tbe complainant introduced much proof to show that exhibits A, B, C and D were not genuine, and the- respondents examined many to show that they were.- Of those examined by complainant, there were nine, not claimed to be experts, but who swore they bad seen complainant write, and Avere more or less acquainted witb bis handwriting, Avho expressed tbe opinion that tbe signatures to said exhibits were not complainant’s. He introduced eight others, who be claims were experts, Avho testified from comparison of handwritings, that the signatures of complainant to tbe exhibits were not bis. Some of these, it may be, have not shown themselves to
When the loan was accepted by said company, which had money deposited in a bank in Selma for investment for it by the Alabama company, it authorized the latter company to pay the money over to the borrower out of moneys already deposited for such purposes, and the
In tbe absence of authority so to do from tbe complainant, tbe Alabama company bad no right to pay tbe loan to said Mangben. It was also tbe duty of tbe London company, when it accepted tbe loan, to transmit tbe money to tbe borrower. If it attempted to do so through its agent for tbe purpose, tbe Alabama company, which company paid tbe money borrowed to Mangben, who was not tbe agent of the borrower to receive it, and be made way with it, tbe London company must suffer through tbe default of its said paying agent, tbe Alabama company. Tbe complainant surely cannot be made to lose tbe money be attempted to borrow, through tbe negligence of either of said companies.
Affirmed.