Shriver v. Sims
| Decision Date | 12 June 1934 |
| Docket Number | 28839 |
| Citation | 255 N.W. 60,127 Neb. 374 |
| Parties | E. A. SHRIVER, APPELLANT, v. IRA T. SIMS ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Adams county: LEWIS H BLACKLEDGE, JUDGE. Affirmed.
AFFIRMED.
Syllabus by the Court.
1. Ordinarily, an agent for collection of a debt secured by a mortgage is not impliedly limited in the method he should pursue in collecting the money, if the result of his efforts leaves his principal unaffected by such negotiations, the money in the hands of the agent, and the mortgage extinguished by the payment.
2. Ordinarily, an agent authorized to collect a debt in money only may bind his principal though the agent accept property other than money, if ultimately the agent receives the face value in money as a result thereof .
3. No duty rests upon a third person, who pays money to an agent designated to receive it, to see that the money reaches the principal, if the third person is without notice of an improper purpose or intention on the part of the collecting agent.
4. Every delegation of authority carries with it implied authority to do all acts reasonably necessary and proper to be done in order to carry into effect the main authority conferred.
5. Upon payment of a debt, the debtor is ordinarily entitled to a return of all securities held by the creditor.
6. " When the money for the payment of a note secured by mortgage has reached the hands of an agent authorized to collect it, the debt is paid, and the mortgagor is entitled to have the mortgage, given to secure the debt canceled." Boyd v. Pape, 2 Neb. (Unof.) 859, 90 N.W. 646.
7. Ordinarily, the payment or satisfaction of a mortgage debt extinguishes the mortgage. Failure to release the mortgage of record may subject the mortgagee to penalties, but has no effect to keep the mortgage in existence.
8. A mortgage is a mere security. It has no efficacy if unaccompanied by a debt or obligation. The debt is the principal thing; the property the incident.
9. Recording assignment is not notice to mortgagor so as to invalidate payment to mortgagee. Comp. St. 1929, § 76-234.
10. Evidence examined and held loan broker was agent of assignee of mortgagee; that circuitous method of agent's securing in money amount of mortgage debt constituted payment; that mortgage was extinguished when money for principal came into agent's possession.
Appeal from District Court, Adams County; Blackledge, Judge.
Action by E. A. Shriver against Ira T. Sims and others. From an adverse decree, plaintiff appeals.
Affirmed.
J. E. Ray, Earl L. Hunter, Charles E. Bruckman and L. S. Dunmire, for appellant.
Herman G. Schroeder and Stiner & Boslaugh, contra.
Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY and PAINE, JJ., and THOMSEN, District Judge.
This case presents the perplexing problem of where the loss shall fall among three innocent persons, the mortgagor and two mortgagees, for the defalcation of a loan broker. Briefly, the following essential facts are shown by the record.
The defendants Anderson are the owners of real estate in the city of Hastings. The plaintiff, Shriver, was the owner and holder of a mortgage for $ 7,500 on this property. John H. Uerling, of the loan firm of Hoeppner & Uerling, had been collecting the interest on this mortgage. Months before the mortgage matured, Uerling got the mortgage and note from Shriver for present collection of the principal. Uerling sold the note and mortgage to the defendants Turpit with the agreement that new papers which the Andersons would execute would be substituted for the old. Uerling then persuaded the Andersons to execute, without payment of commission, a present renewal of the mortgage. This was done by executing a new note and mortgage. Substitution of papers with the Turpits was then made. Uerling kept the old papers in his possession until pressed by the Andersons for a release. The old mortgage was not formally released, but Uerling marked the old papers and note "paid" and gave them to the Andersons. The Turpits paid Uerling $ 7,500, the full amount of the note and mortgage. Uerling, now insolvent, never paid the $ 7,500 to Shriver, and the latter brought these foreclosure proceedings on his mortgage. The district court held the old mortgage to have been satisfied by the $ 7,500 which Uerling received from the Turpits. The question presented is: Is the mortgage of Shriver a subsisting one?
All the details of dealings are unnecessary to a solution. However, the record leads to but one conclusion: That Uerling acted as agent for Shriver and no one else. With all the parties Uerling was the aggressor. In order to obtain the mortgage and note, he represented to Shriver that the Andersons wanted to pay. He induced the Andersons to renew the mortgage about five months before the mortgage was due, upon the representation that money might be hard to get on due date, and upon the false representation that an out-of-town person, whom the Andersons knew, would lend the money then. When the Andersons demurred and stated that they might want to pay the mortgage off at maturity, and that they did not want to pay any commission, he said they might pay it off any time and To the Turpits he represented that he had the Anderson loan for sale, and to the Turpits, having the money available for an investment, he delivered the Shriver papers with the agreement that a new loan would be made. So far as the record shows, it was only Shriver who had had prior dealings with Uerling. Uerling had collected the interest on this mortgage for Shriver and had collected the principal of other loans for him. The Andersons apparently met Uerling for the first time in a business way when the first interest coupon on the mortgage, which they had assumed and agreed to pay in purchasing the building, came due. On that occasion Uerling called upon them with the coupon. Thereafter they paid the interest at Uerling's office, Uerling always producing the coupons; occasionally Uerling would call at their place of business with the coupon when the interest was due. The Andersons paid no commission to Uerling; neither did the Turpits. To the Andersons, practically speaking, Uerling was a mere officious intermeddler; to the Turpits he was merely, as it were, a sales agent. As to the parties, not one was known to the other, not one inquired of the other. Probably no other result would have followed if the Turpits and the Andersons had communicated, but it is probable that Uerling's embezzlement could not have arisen if Shriver and the Andersons had communicated. But Shriver and the Andersons were strangers. It may have required some effort and time on the Andersons' part to locate the owner of the mortgage. The old mortgage had been made by a former owner of the property, and the present plaintiff acquired the mortgage by assignment through the estate of his father. But the Andersons were active in seeking a release. So persistent were they that, when the effectiveness of excuses began to seem doubtful Uerling satisfied them by marking the old mortgage and note "paid" and giving them the papers.
Shriver could well have been more diligent. Although he occasionally inquired as to whether or not the Andersons had paid the mortgage, and even after the due date of the mortgage had passed, conditionally accepted from Uerling another mortgage, which turned out to be a second mortgage on other property for $ 3,500, which Uerling had falsely represented to be a first and a part of the Anderson settlement, he pursued the matter no further. He did not inquire of the Andersons at all, although he knew on what property his mortgage existed and must have known who occupied the building. As a matter of fact, he did nothing for his own protection after turning the papers over to Uerling. Although it was untrue that the Andersons wanted to pay the loan at the time that representation was made by Uerling to Shriver, yet Shriver did permit Uerling to take the papers for the very purpose of collecting the mortgage; in other words, Shriver authorized Uerling to get the money. The Andersons had no part in the false representation nor in inducing Shriver to part with the mortgage and note. The Andersons owed no duty to Shriver, since Uerling had possession of the papers for the authorized purpose of collection, and even if the assignment of the mortgage to the present plaintiff had been recorded, such record would not have been notice to the Andersons and obliged them to search the record for the present owner of the mortgage before making payment.
"In case of negotiable securities, the holder alone is the one prima facie entitled to receive payment." Williams v. Keyes, 90 Mich. 290, 51 N.W. 520, cited in Stark v. Olsen, 44 Neb. 646, at page 658, 63 N.W. 37. See, also, section 76-234, Comp. St. 1929, which provides that the recording of an assignment is not notice to mortgagor so as to invalidate payment made to mortgagee.
That Uerling was the agent of Shriver for the purpose of collecting the money is conceded by appellant in his brief. It is clear that Uerling was not the...
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