23 Wis. 532 | Wis. | 1868
Was the son who was sent to the clerk’s office acting as the agent of the plaintiff, or within the scope of his authority, when he took the mortgage from the files ? If he was, then his act was the act of the plaintiff, and the mortgage must be deemed to have been off the files with the plaintiff’s assent. In that case the doctrine of Single v. Phelps, 20 Wis. 398, would seem to govern, and the plaintiff could not recover. On the other hand, if the son was not acting as the agent of his father, nor within the scope of his authority, his act in taking the mortgage was merely wrongful, and the father was no more bound by it than if the mortgage had been taken by a total stranger. In this case the rule of Woodruff v. Phillip, 10 Mich. 500, would be applicable, and the plaintiff would not lose his lien, especially as against a creditor of the mortgagor, or purchaser from him, who took the mortgaged property with full knowledge of the existence of the mortgage. The mort
- By the Court. — Judgment affirmed.