Temple v. Harrington

176 P. 430 | Or. | 1918

OLSON, J.

The only points raised by appellants in their brief are, first, that the power of attorney executed by Kate Willcox Harrington to her husband, George H. Harrington, is not sufficient to authorize said George H. Harrington either to sign a note for said Kate Willcox Harrington, or to bar a dower interest by signing a mortgage for her. Second, that the alterations made in the mortgage invalidated the same. Third, that if the power of attorney does not authorize George H. Harrington to sign the note as and for Kate Willcox Harrington, the note being joint and invalid as to one party would be invalid as to both.

An examination of the power of attorney seems to-indicate that it is a general power of attorney and contains therein a specific authorization to “and also for me and in my name and as my act and deed to sign, seal, execute and deliver, * * notes, evidences of debt * * .” The signature affixed to the note is in due and proper form, and the power of attorney seems to give ample authority for the execution of the note.

1, 2. As to whether said power of attorney is sufficient, however, to bar the dower right of Kate Willcox Harrington is a question unnecessary to a decision of this ease. It appears on January 27,1913, John Powel deeded the property in question to George H. Harrington, and immediately thereafter a mortgage was executed to John Powel covering the same property. Where two instruments are executed at 'the same time between the same parties and covering the same subject matter, they will be construed together as constituting one agreement: Dean v. Lawham, 7 Or. 422; Kruse v. Prindle, 8 Or. 158; Bradtfeldt v. Cooke, 27 Or. 194, 203 (40 Pac. 1, 50 Am. St. Rep. 701). Considering the deed and mortgage together as one instrument it is apparent that said mortgage is a purchase money mortgage. This is further borne out by the fact that the mortgage itself does not recite that any money was paid by the mortgagee to the mortgagors as a consideration therefor, as is the custom in a straight loan, but recites that “mortgagors herein do hereby mortgage to John Powel, mortgagee herein, to secure the payment of Eight Thousand ($8,000) Dollars, etc. ’ ’ This being a purchase-money mortgage, it is covered by Section 7289, L. O. L., which provide^:

“When a husband shall purchase lands during coverture, and shall at the same time mortgage his estate in such lands to secure the payment of the purchase money, his widow shall not be entitled to dower out of such lands as against the mortgagee or those claiming under him, although she shall not have united in such mortgage; but she shall be entitled to dower as against all other persons.”

Kate Willcox Harrington, therefore, not being entitled to dower as against this mortgagee and those claiming under him, it is immaterial whether the power of attorney is broad enough to authorize the barring of her dower, and the decree was properly entered in the lower court barring her dower as far as the interests of the assignee of the Powel mortgage were concerned.

3-5. The question remaining to be settled is that of the alleged alterations in the mortgage. The addition of the words “by here Atty. in Pact” under the name of George H. Harrington signed after the name of Kate Willcox Harrington is not a material alteration, and therefore will not invalidate the mortgage. In the first place, under the decisions of this court the note and mortgage are construed together as one instrument and the execution of the note by George H. Harrington as the attorney in fact of .Kate Willcox Harrington is entirely regular. The placing of the signature of George H. Harrington after that of Kate Willcox Harrington upon an instrument which said George H. Harrington had signed personally, would have the legal effect of being the signature of Kate Willcox Harrington by George H. Harrington, her attorney in fact, especially in view of the fact that the note accompanying said mortgage is properly executed and sufficiently indicates the intent of the parties. An alteration that does not change the legal effect is not a material alteration and does not invalidate the instrument.

6, 7. The other alteration, the putting of the word “date” over some other word erased, presumably the word “annum” as shown upon the note, is not a change that would invalidate the instrument. An examination of the original mortgage discloses the fact that the word “date” is written by the same typewriter as was used to fill in the other blanks in the mortgage, in that certain peculiarities of the blurring of certain letters are reproduced in the word ‘ date. ’ ’ Any change made in an instrument before the signatures are affixed is not an alteration within the meaning of the decisions as to the invalidation of instruments by material alterations. Any changes made before the signing of the instrument are presumed to be authorized. The evidence in this case does not definitely fix this change as having been made after the execution of the instrument, and from the testimony there would be little or no opportunity after the execution of the instrument for any change to be made on the same typewriter as was used to fill out the original instrument. However, this change is not material. The expression “8 per cent per annum from annum until paid’ ’ is of the same legal effect as if it read “8 per cent per annum from -until paid.” Section 5850, L. O. L., provides:

“ # * "Where the instrument provides for the payment of interest without specifying the date from which interest is to run, the interest runs from the date of the instrument, and if the instrument is un- ' dated, from the issue thereof. * * ’ ’

The effect, therefore, of this change is> simply to carry out the provisions of the section above set forth, and not being a material change it will not invalidate the instrument. That this construction of the instrument was the intent of the parties is shown by the fact that interest was paid by the defendants several times, the interest being computed on the basis of the interest being payable from date of note and mortgage.

Decree affirmed. Affirmed.