DixoN, C. J.
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" court="Wis." date_filed="1866-01-15" href="https://app.midpage.ai/document/single-v-phelps-6599529?utm_source=webapp" opinion_id="6599529">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" court="Mich." date_filed="1862-10-21" href="https://app.midpage.ai/document/woodruff-v-phillips-6632806?utm_source=webapp" opinion_id="6632806">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*536gage bad been delivered by tbe plaintiff to Mr. Head to be by the latter deposited in the town cleric’s office. The son was sent to the cleric’s office to ascertain whether it had been so deposited by Mr. Head, and if not, he was to go to Mr. Head, and get it and put it on file. When he came to the office, he found that the mortgage had been filed according to his father’s directions, and there his agency ceased.' He had no authority, nor semblance of authority, for talcing the mortgage from the office; and when he did so, though acting, no doubt, upon the belief that his father wished to have the mortgage taken home, he nevertheless committed a wrong, as much as if his business at the office had had no connection whatever with the mortgage. It was an act not authorized by the plaintiff, and done in violation of the law both by the son who received and the clerk who delivered the mortgage; and the question is, whether the plaintiff must suffer in consequence of it. On this question we fully agree with the Michigan court in saying, that a party is not to be deprived of his rights in this way. It is indeed a very plain proposition, that a person cannot lose his title to property by the unlawful act of another, done without his knowledge, and to which he has never given his assent. And particularly is this so, where the opposing claimant acquired his interest well knowing of the title which he thus seeks to subvert. The Michigan case was that of a purchaser from the mortgagor, who bought and paid for the property in good faith, supposing that there was no mortgage on file. He inquired at the clerk’s office, and was informed by the clerk that the mortgage had been withdrawn. A memorandum to the same effect in a book kept in the office, was likewise shown to him. It turned out that the clerk was mistaken, and that the mortgage had been returned, and was then on file. In the suit between the purchaser and the mortgagee, for the property, it was held that the title of the mortgagee must prevail, for the reason that *537tbe entry by tbe clerk in tbe boob, and bis statement to tbe purchaser tbat tbe mortgage was not on file, were unauthorized acts, by wbicb tbe rights of tbe mortgagee could not be affected. The rights of tbe mortgagee were secure so long as tbe mortgage was actually on file. Tbe purchaser was bound to search tbe files, and acertain from them whether it was there or not. In that case tbe mortgage bad been withdrawn by the mortgagee himself. It was observed by tbe court, tbat if tbe purchaser bad called to see tbe mortgage when it was out of tbe office, or if tbe mortgagee bad given bis assent to tbe memorandum wbicb misled tbe purchaser, a different question, possibly requiring a different decision, would have been presented, upon wbicb tbe court declined to express an opinion. And in tbe present ease, if tbe defendant bad not been familiar with tbe transaction, tbe recent making and filing of tbe mortgage, or if, being ignorant of tbe manner in which it was withdrawn from tbe office, which it appears he was not, be bad called at tbe office and learned tbat it was not on file, and then bad attached tbe property, very different questions, requiring, it may be, a different decision, would have been presented; but of these it is unnecessary now to speak. It is enough tbat we are satisfied tbat tbe questions of fact, both as to the mode in wbicb tbe mortgage was withdrawn and the diligence used by the plaintiff in returning it, were fairly submitted to the jury, and tbat tbe jury must have found tbat it was withdrawn without tbe plaintiff’s assent, and tbat be was guilty of no laches in causing it to be returned to tbe files. As observed by tbe learned judge to tbe jury, these seem to have been tbe real questions at issue; and as they were fairly submitted, it follows tbat there was no error in refusing tbe instructions asked by tbe defendant, for wbicb thé verdict ought to be disturbed.
- By the Court. — Judgment affirmed.