Morris v. Ewing

• Decision Date: 04 November 1898
• Docket Number: 6731
• Citation: 76 N.W. 1047,8 N.D. 99
• Court: North Dakota Supreme Court

76 N.W. 1047

8 N.D. 99

MATHILDA MORRIS et al. v. JOSEPH EWING

No. 6731

Supreme Court of North Dakota

November 4, 1898

Appeal from District Court, Pembina County; Sauter, J.

Action by Mathilda Morris and others against Joseph Ewing. Judgment for plaintiff, and defendant appeals.

Reversed.

Case reversed. Judgment entered quieting defendant's title to an undivided one-half interest in the land described in the complaint, and awarding defendant his costs and disbursements.

Bosard & Bosard, for appellant.

E. W Conmy, for respondents.

WALLIN J. BARTHOLOMEW, C. J., concurs. YOUNG, J., did not sit in the case, or take any part in the decision.

OPINION

WALLIN, J.

This action was brought, under the statute, to quiet title to a quarter section of land situated in the County of Pembina. The following facts are conceded: That the land in question was on the 7th day of August, 1882, owned by the defendant Joseph Ewing, and his brother, Robert Ewing, as tenants in common. That on the day stated, Robert Ewing, acting in his own behalf, and also assuming to act as the attorney in fact of his brother, the defendant, executed and delivered a mortgage in due form on said land to one William Camp, to secure a loan of $ 500 then paid over to Robert Ewing by said Camp. The mortgage was subsequently foreclosed by advertisement, and the premises were purchased by Camp at the foreclosure sale in the month of July, 1887; and thereafter, and in July, 1888, said Camp, after receiving a sheriff's deed pursuant to such foreclosure, conveyed the land to one Frank Morris. That said Morris died in October, 1895, and the plaintiffs, who are the heirs at law of Morris, claim title to the entire land, under a decree of the Probate Court of said county awarding title to the plaintiffs. It is further conceded that prior to the execution of the mortgage a certain power of attorney was made by the defendant to his brother, Robert, which was duly recorded, and the same was in full force when said mortgage was made and delivered. By the terms of said power of attorney said Robert Ewing was authorized, in explicit language, to sell all of defendant's interest in said land, and to convey the same by deeds of warranty. Nothing was said in the power of attorney about mortgaging the land. The defendant, by his answer to the complaint, alleges title and ownership of the land in fee simple in himself, and prays that a decree be entered quieting the title in himself, and awarding him possession of the land, and for general relief in equity. The District Court entered a judgment in favor of the plaintiffs, quieting the title of the plaintiffs to the whole of said premises, and excluding the defendant from any interest in the land.

The only findings of fact made by the trial court which are now controverted are the following findings: First. "That the mortgage of five hundred dollars hereinbefore referred to, given by Joseph Ewing, by Robert Ewing, under power of attorney, was given to secure a debt of five hundred dollars; that said debt was for the loan of money made by said William Camp to and for Robert Ewing and Joseph Ewing; that Joseph Ewing received a portion of the money from said loan." Second. The Court further finds that the said Joseph Ewing knew of the foreclosure proceedings, and that between the foreclosure sale and issuance of the deed by the sheriff he acknowledged and recognized the mortgage thereon as valid and binding, and agreed to pay the same." Appellant's contention is that these two findings of fact are not supported by the evidence. No evidence was offered at the trial in defendant's behalf, and it is conceded that he was not present at the trial. It is also conceded that the defendant at the time of the trial, and for some years prior thereto, was a nonresident of this state, and lived in the Dominion of Canada. Defendant's counsel seemed to reply at the trial wholly upon his contention that said power of attorney conferred no authority whatever upon the defendant's brother to incumber the land by mortgage. This contention is undoubtedly sound, and must be sustained. The rule is now firmly established that a mere power to sell and convey by deed of warranty does not carry with it, by implication, a power to incumber land by mortgage. The power to execute a mortgage upon land does not confer authority which is merely less in degree than the power to sell. The power to mortgage is one distinctly differing in its nature from the authority to sell and convey. Many authorities might be added to those cited below in support of this well-established rule of property. Wood v. Goodridge, 52 Am. Dec. 771; Jeffrey v. Hursh, 49 Mich. 31, 12 N.W. 898; Insurance Co. v. Bay, 4 N.Y. 9; Kinney v. Mathews, 69 Mo. 520; Morris v. Watson, 15 Minn. 212 (Gil. 165); Campbell v. Association (Pa. Sup.) 163 Pa. 609, 30 A. 222; Lamy v. Burr, 88 Am. Dec. 135; 1 Jones Mortg. 129; Switzer v. Wilvers, 24 Kan. 384.

Applying this rule to the facts of this case, the defendant is entitled to a decree quieting the title in himself to an undivided one-half interest in the land in question, unless he has in some manner ratified the mortgage or otherwise estopped himself from asserting title to the land. It cannot be claimed that the evidence shows or tends to show any formal ratification on defendant's part, either of the mortgage, or of any title acquired under the mortgage. Authority in writing is indispensable to an agency to mortgage land, and where, as in this case, a mortgage upon the land is executed by one who without authority assumed to act as an agent of the owner, any act of ratification on the part of the owner, to be valid, must be evidenced by some writing. Upon this point a provision of the Civil Code voices an elementary principle. Section 4315, Rev. Codes, reads, "A ratification can be made only in the manner that would have been necessary to confer an original authority for the act ratified, or when an oral authorization would suffice, by accepting or retaining the benefit of the act with notice thereof." There is no pretense in the case at bar that the defendant ever made a written ratification of the mortgage, or attempted to do so. Certain evidence hereafter set out is relied upon as sustaining the second finding of the trial court above quoted, which declares that "between the sale and issuance of the deed by the sheriff he (the defendant) acknowledged and recognized the mortgage thereon as valid and binding, and promised to pay the same." We do not think the evidence tends to show an express oral promise to pay the mortgage, but, as we have seen, an explicit oral agreement, made after the execution, delivery, and foreclosure of this mortgage, to pay the same, would be wholly inadequate, and would not operate as a valid ratification, either of the mortgage, or of any title acquired thereunder. The testimony of William Camp, the mortgagee, was given, and tends to show that all negotiations for the loan were made by Robert Ewing, and that the defendant did not participate personally in such negotiations, and was not present when the money loaned was paid over to Robert, nor when the mortgage was executed and delivered to Camp. Nor is there any evidence in the record showing that the defendant had any knowledge of the existence of the mortgage until some time long subsequent to the execution and delivery of the mortgage. Just when defendant first learned of the mortgage, does not appear. But Camp testified, against objection, that the loan was solicited by Robert Ewing as a loan for the use of both Robert and Joseph. It is clear, however, that inasmuch as it does not appear that the defendant had clothed his brother with any authority to either make the loan or execute the mortgage, and was not present at the time, defendant was not estopped by any representations made by Robert in obtaining the loan or in making the mortgage. This witness also testified to a conversation had with the defendant as follows: "I spoke to Joseph Ewing about removing the timber off, and he said he would pay me for the timber; he would make it all right; I should not lose anything." The date upon which this talk occurred does not distinctly appear. It probably occurred soon after the foreclosure sale. Upon this feature Francis A. Hart also testified in effect as follows: "I heard a conversation between Mr. Joseph Ewing and Mr. Camp. I was standing near, and, after I went out, Mr. Ewing met me between the corner and his place, and he says, 'We have cut wood on this place all right, and we have been selling it to pay the mortgage.' It was either fifteen or eighteen cords. And he says, 'I agreed to pay Major Camp for this wood.' And he says, 'I don't know how we are going to raise the money to redeem this place.'" It is apparent from this feature of the evidence that at the time the two conversations testified to, relating to cutting timber off the land, occurred, the defendant stated first, and in the conversation with Camp, that he would pay for the timber so cut from the land, and, in the conversation testified to by Hart, defendant stated that he agreed to pay for some wood,--15 or 18 cords,--which the defendant and some other person had cut on the land. In the same conversation the defendant said, "I don't know how we are going to raise the money to redeem this place." Comment upon this evidence is unnecessary to show that the same is not, and does not purport to be, even an oral ratification of the assumed agency of Robert Ewing in making the mortgage, nor does it purport to contain a promise to pay the debt evidenced by the mortgage. Hence these conversations fail utterly to establish any ratification of the assumed agency of Robert Ewing. At furthest, these...