76 Neb. 83 | Neb. | 1906
On the first day of March, 1888, a mortgage was given to the Guarantee Loan & Trust Company of Kansas City, Missouri, by one Mangus, conveying 160 acres of land in
On September 24, 1893, Gustofson conveyed the land by his warranty deed to Fagerstrom, who claims to be a purchaser in good faith, without notice, of the appellee’s assignment. It is apparent that the appellant Fager-strom bad actual notice of all the facts known to his grantor, and kmnv of the assignment, and therefore he has no greater equities than Gustofson would have, had such transfer never been made. The sole question here presented is whether or not the loan-company was the agent of its assignee, the appellee herein, clothed with actual or ostensible authority to collect the principal and interest. The appellee claims tha,t the loan company had no authority to extend the time for the payment of $500 of the principal, nor to collect any part of the principal or interest at any time; and in his deposition states that no such authority existed. But we take into consideration the facts testified to by him, and other evidence showing the relationship which existed between him and the loan company, rather than his opinions or conclusions as to their relations. About the time of the assignment of the mortgage in controversy, the appellee also procured seven other mortgages from the loan company, and- regarding his relations generally with the loan company he says, in substance, that he did in one or two cases accept part payment and extend the time for the payment of the remainder; that the loan company usually sent its check, and requested him to send coupons; that at least two other loans were collected by the loan company for him. He also attached as exhibits to his deposition letters re
■’ But the proof is not limited to facts showing general authority. In his deposition, appellee admits that he did- agree to an extension of two years’ time for the payment of $500 of the principal, upon the payment of $250. After agreeing to this he did nothing toward the collection óf the paper, until the amount thereof had been paid and the'loan company had failed in business. As a reason for his' inexcusable neglect he sayS: “These people,” referring to the loan company, “assured, me that these papers were all completed, and that all that I would have' to do Was to put them in my safe and receive the principal and interest when due, and the company would guarantee the •payment of it.” Upon these facts it appears that the ap-pellee relied upon the agency of the loan company for the collection of the principal and interest; and it malees no difference whether that agency was authorized by express contract, or implied from the relationship existing between them. In Thomson v. Shelton, 49 Neb. 644, it was held:
' “Ostensible authority to act as agent may be conferred if the party to be charged as principal affirmatively or*87 intentionally, or by lack of ordinary care, causes or allows third persons to trust and act upon such apparent agency.”
In the case at bar, proof of the lack of ordinary care in looking after his property, either personally or through some other agent, and the other facts proved convince us that he depended upon the agency of the loan' company to protect his interests, and that Gustofson was justified in relying upon such agency and making the payments as he did. The loan company having authority to collect the money, payment to it satisfied the lien, and the appellee’s right to'foreclose thereby ceased.
The appellants, in the court below, asked that the said mortgage be declared no lien upon said premises; that it be canceled of record, and the title to said land be quieted in the appellant Charles Fagerstrom, and that the ap-pellee’s action be dismissed. Appellants were entitled to this, and we recommend that the judgment of the district court be reversed, and that court be directed to dismiss the appellee’^ action, and enter his" judgment therein canceling said mortgage of record, and affirming the title to said premises' in the appellant, Charles Fagerstrom, in so far as the same is affected by the said mortgage and the assignment thereof.
By the Court: For the reasons appearing in the foregoing opinion, it is ordered that the judgment of the district court be reversed, with instructions to the district court to enter his judgment dismissing the appellee’s case, and canceling his said mortgage of record, and quieting the title to said premises in the appellant, Charles 'Fager-strom, in so far as the same is affected by said mortgage and the assignment thereof. -
■Judgment accordingly.