26 Or. 1 | Or. | 1894
Opinion by
The contention for the defendant is that the evidence offered and excluded tended to show that Moore was such an agent of the plaintiffs as that his knowledge at the time the loan was made of the existence of the Marks & Company mortgage was notice to the plaintiffs, and, as a consequence, they were not misled by his certificate, but had knowledge through their agent of the existence of the outstanding incumbrance before they parted with the money.
The defendant’s duties were of an entirely different character, requiring in their proper discharge the special knowledge incident to his profession as an attorney, which the treasurer was not expected to have. He was appointed for the purpose of ascertaining and reporting the state and condition of the title of land, and in assuming to
The law provides that the school fund shall be loaned only on’ unincumbered property to applicants having a title thereto free from defects, and the board is only authorized to make a loan on real property so circumstanced. It was therefore its duty to ascertain that, the title was in such condition at the time the loan was made and the money paid over, some three month’s after the date of defendant’s certificate, but if it neglected to do so such neglect would, of course, not.relieve the defendant from liability upon his certificate. In approving the application and ordering the loan it had a right to rely and act upon defend ant’s certificate as decisive of the status of the property at the time it was made, and if, relying thereon, it simply ordered and directed Moore, who, under its rules, was a mere custodian of the fund, to pay over the money to Roberts, and by reason of defendant’s incorrect certificate it was lost, defendant would be liable, although Moore may have known of the outstanding incumbrance. Moore’s duties, as prescribed by the rules of
Reversed.