62 P. 794 | Or. | 1900
delivered the opinion.
This is a suit to foreclose a mortgage purporting to have been executed by Preston C. Smith and Susie W. Smith, his wife. The husband having died, the widow was appointed administratrix of his estate. Both the note and mortgage were executed October i, 1892, by the husband on behalf of the wife, by virtue of a power of attorney executed September 13,1892, while she was in Madison County, Alabama. The defense is that the power of attorney is inadequate to the purpose of authorizing the husband to execute these instruments in behalf of his wife. The question is one of much difficulty, because it involves the construction of language which is not altogether clear. The authority delegated to the attorney in fact was special, so that the husband became thereby a special agent, with power to transact
It is said that its object is to empower the husband to bar
It is claimed by the respondent that, the wife by her long silence has ratified the acts of her husband under the power of attorney. But such defense is not pleaded, and cannot, therefore, be considered. For the reasons here stated, the decree of the court below will be modified so that it will not bar the wife’s right of dower. In all other respects it will be affirmed. Modified.