Thigpen v. Arant

• Decision Date: 15 October 1925
• Docket Number: 3 Div. 713
• Citation: 105 So. 644,213 Ala. 516
• Parties: THIGPEN et al. v. ARANT.
• Court: Alabama Supreme Court

105 So. 644

213 Ala. 516

THIGPEN et al. v. ARANT.

3 Div. 713

Supreme Court of Alabama

October 15, 1925

Appeal from Circuit Court, Conecuh County; John D. Leigh, Judge.

Bill in equity by B.D. Arant against Charles A. Thigpen, G.J Peagler, and others, with cross-bill by Thigpen and Peagler. From the decree, cross-complainants appeal. Reversed and remanded.

Lane &amp Lane, of Greenville, for appellants.

B.E Jones, of Evergreen, and Hugh M. Caffey, Jr., of Brewton, for appellee.

SAYRE J.

Crumpton owned 550 acres of land in Conecuh county. In 1908 he borrowed money from Mrs. Haralson, and executed a mortgage upon the entire tract to secure repayment. In 1909 he sold and conveyed the entire tract to G.W. Moye at what appears to have been the full value of the unincumbered property. At the same time Moye made a mortgage to appellant Thigpen to secure money borrowed. In 1911 Moye sold and conveyed 80 acres of the tract to Jones, who sold 40 acres to appellee, Arant, and in 1912 Moye sold and conveyed 39 acres to appellee. Thigpen received the purchase money for these 79 acres, and thereupon executed in favor of appellee releases of the two parcels constituting these 79 acres from the lien of the mortgage he held from Moye. As to one of these parcels he executed the release on the margin of the record by his own hand; as to the other the release was executed by "Crumpton, attorney in fact." In 1915 appellee purchased an additional parcel of 20 acres from the Pughs to whom Moye had sold it. None of these parties were aware of the existence of the Haralson mortgage. But, after Crumpton's death in 1916, the Haralson mortgage was placed in the hands of an attorney for collection, whereupon appellee, Arant, in order to protect his interest in the parcels which he had purchased, secured for value an assignment of the Haralson mortgage, and filed the bill in this cause to foreclose, praying that the part of the land retained by Moye and those parcels sold and conveyed to other parties be sold in the inverse order of their alienation. Moye and the subsequent alienees were made parties defendant, but they suffered decrees pro confesso to be entered against them. Thigpen was also made a party defendant, as was Peagler, to whom Moye had, in 1914, executed a mortgage of so much of the tract as he had retained to secure a loan. Thigpen and Peagler filed cross-bills, and are now prosecuting this appeal.

When Moye learned that Thigpen was pressing Crumpton, his agent, to collect, he (Moye) employed Crumpton to get a loan of $3,000 for him from Peagler, with which he intended to pay off and discharge Thigpen's mortgage. Crumpton got the loan from Peagler on the security of Moye's mortgage, but converted the proceeds to his own use, and shortly afterwards died. Thigpen knew nothing of this transaction by and between Moye, Crumpton, and Peagler. The parties to this cause are in disagreement as to where the loss of this $3,000 should fall. We think it was Moye's loss. It is true that Crumpton was Thigpen's general agent; that is, he had authority from Thigpen in his name and stead to do all acts necessary and proper to be done in connection with Thigpen's numerous loans of money in Conecuh county--to transact all the business of his principal in that connection. In virtue of the power of attorney placed upon the public records of the county and the reasonable inference to be drawn from the long practice observed by the parties in the transaction of Thigpen's mortgage loan business in the county ( Thompson v. Ware, 200 Ala. 624, 76 So. 982), Crumpton had at least apparent power to bind Thigpen by whatever was usual and proper in the transaction of that business, and, in the absence of known limitations, third persons had a right to act on the presumption that the scope and character of the business Crumpton was employed to transact measured the extent of his authority. Wheeler v. McGuire, 86 Ala. 402, 5 So. 190, 2 L.R.A. 808; Montgomery Furniture Co. v. Hardaway, 104 Ala. 100, 16 So. 29; British & American Mtg. Co. v. Cody, 135 Ala. 622, 33 So. 832; 2 C.J. p. 581, § 222. Crumpton had authority to receive payment of all mortgage debts due to Thigpen in Conecuh county, and, since the satisfaction and release of mortgages in full or in part after payment in full or in part would seem to fall within the usual and ordinary scope of the business in which they were engaged, we think Crumpton had authority in Thigpen's name to note upon the margin of the record of the mortgage held by the latter a release of so much of the lands covered thereby, 39 acres, as complainant Arant had purchased from Moye, the purchase money having been paid to Crumpton as Thigpen's agent in reduction of the amount of the mortgage.

But we are not of opinion that the loss of the $3,000 received from Peagler by Crumpton and by him converted to his own use should fall upon Thigpen. Crumpton was Thigpen's general agent to collect his mortgage dues, but in the matter of obtaining a loan for Moye from Peagler, which Moye intended should be applied in satisfaction of Thigpen's mortgage, it is clear that he was the agent of Moye. American Mortgage Co. v. King, 105 Ala. 358, 16 So. 889; Edinburgh Co. v. Peoples, 102 Ala. 241, 14 So. 656; Ginn v. New England Co., 92 Ala. 135, 8 So. 388; Allen v. McCullough, 99 Ala. 612, 12 So. 810; George v. New England Co., 109 Ala. 548, 20 So. 331; Land Mortgage Co. v. Preston, 119 Ala. 290, 24 So. 707. Assuming that the "money was left with Crumpton to pay Thigpen," as Moye testifies, in the matter of transmitting the money to Thigpen he was still...