481 ·Ji
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,1b1NWlCX 11. WHElllLBB. ' i t-,
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1..
, . Itt aauit to cancela: jtidgment renderedfot;thc:i l)alance'of a debt after foreclosure elf a mortgage. alleged an agreement that htuhould turnover the to the mortgagell in,fu.ll.paytment, but that{ being unaple to make a good,title becaUse'of pending suits agliinst him, an atnicable foreClosure was had,and the judgment for the excessw8.B left unsatisfied" by neglect or: oversight. Held that, tbe evidence being doubtfll1 011 this Poillt, .the fact that no to enforce the judgmen't was made for'l'; years would tUm the iii' 'tlie mortgagor's favor. A power of attorney expr!IBsly authorizing the agent ,to',seU, convey, or mortgage tbe prlpcipal'8 lands in Iowa, and collect the price thereof, and constituting him general attorney in f/ict to transact any or all busineaa for U8, * * * of any AND SPlIOrAL TERMS.
'
-L',POWEa8 01'
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ltind,whataoever.in housell,t · · and satisfy any mortg,+ges made or to be made t{) us, " etc.,-confers power to agree to take certain lands, by a mortgage, In full satisfootion of tliedebt secured thereby.'
:411 to give)lp!ill the land opvere'ill1y a by an alnloable fore. t:lollureslJit, is' a sufticient consideration for'an agreement to accept the land in fUll of the debt, inc11;1ding any deftOl.ency thatJDjgIit. remain after tile ·foreolosure sale. .: ; '
TOSATJSFy-OONIlIDBRATioN. , . '
:, ': ' ..
In Equi(y.
Bill to tll\.nceijudgmellt. John N. Rogers, for co.mplainant. . L .. M. for
MCCRAiy;,J.. js abilJ in equity praying tain appearing upon therec()rds of the district court of f)cott cpunty, Iowa, in favor9f the defenda.nt an,d against the plaintiff, ontbe groulld that the has. been settled and satisfied. The,judgmentwas rendered on the 18th day of February, 1861, in ,6 suit for the fOTeQlos:ure of a mortgage real estat.e. The mortgaged property was soldunderthe Judgment in)881,6rid bought in by Wheeler,for smd the sheriff's deed.was immediatelyinade to him. . This 1;llilan.\le unsatisfied on the recqrg, :whioh now amounts,inoluding i'uterest at 10 "per cent., to something OTer 82,000. No attempt was ever made to collect this balance until De6ember, 1878, about 17 years after the date 'o,fthejudgment, when it general execution was issued,and attempts were made to enforce its payinent, which led to the filing of this bill, anc1 the allowance of a temporary injunction to restrain, until further order, the _collection of the judgment. The note and mortgage on which said judgwas I1endered were- made by complainant, James Ren,ment of wick, to defendant, Wheeler, April 8, 1857, for the purchase money of a piece pf land in Davenport, then purchased by Renwick frotu Wheeler through Wheeler's agent and attorney ,in fact, Erastus Ripley. Wheeler re1!ideg in :Pennsylvanla, and 'Ripley in Davenport, Iowa. Renwick, -who al$9 resided in Davenport, made certain payments on the mortgage .debt, amounting in the to $565. The StiUl secured by the .with interest, and the mortgage covered, beaides i .land .purchased Wheeler, adjoining tract, fOl'wbich
lena
FEDERAL
BEPOBTER,vol. ;48.
Renwick had paid $600. Before the commencement of the foreclosure suit, Renwick had become 'finan'cially"etnbarrassed, and was unable to pay the balance of the debt; and he alleges in the present bill that he entered into an agreement' with Wheeler i through his agent, Ripley, that Wheeler should take the .entire mortgaged property in satisfaction of and out this agreement (Reriwickheing unli·bletonmake a good title by deed on aooount of judgments against him) foreclos.urewas had, iq wo.ich thejudgment iIi was by default, and 'was left unsatlsfied, after the sale, by neglIgence or qv¢r:s!ght. Thecoritr,c;>versy here.isCl) as truth of this allegaas a matter of law to entitle the comtion; and (2) as to .....,' , . Without going here mto a discussion of the q uestioil o£ fact, it is sufficient,t? state that, tJ;te whole'oa.se, the court i!3 ofthe opinion that thewelght of evidencei$ with the complainant; but if, upon the direct testimony of witnesses, this. were' doubtful, the long .lapse of time beoftllejudg.merit8l}d the issuing 'Of the general executioli; isa:circumstance of 13ufficientsignificance to turn the it} the complainant's favor. It is well settled that satisfaction of a judgment may be presumed in a shorter period. than 20 years,. if other circumstances are shown which render satisfaction .prpbable.· Hendricks v. Wallis, 7 Iowa, 224; Ang. & A; Lim, §§ 171, 172.' It is insisted on behalf of defendant that it does not appear that Ripley, the agent of Wheeler, had aut];tority to make the contract. relied upon. This depends'upoh the of the power of .under which RipleY'8cted, 'fhat instrfiment, which is before us,after authorizing theageritto sell, conveY,or mortgage any teal . estate belonging to Wheeler within the state of Iowa, and to collect all sums due on that accou:nt, ,provides as follows: And further constitute said ;Erastus Ripley our general attorney in fact to transact any or all business.. for us, or either of us, of any kind state of Iowa; to tent ,houses and sign leases. and to collect money, 'ilxelltltereceiptsfot the same,'and to satisfy any mortgages made ,or to be made to us; or either of us, upon any lands In the state of Iowa; it being the trne intent and meaning of thitlfinstrumenttoconfer urOD the said l-Upley fldl power andauthority..to act for us in all lllattertl of every kind w4atsoever arising, or that may arise, in the said state ,otTowa." .
It is saiel that the general language in· this power of attorney is ra'stra.iIled by the special and specific authority elsewhere in the same inetrtlment conferred. The general rule is that general terms following, in the saine instrument, words which'ednfer a specific authority, are to be 'held subordinate to, and as limited by, the specific authority. Instruments of this chhracter are strictly and 'the.authority is never extended beyond that which is given in terms, or which is necessary or proper for carrying the authority so gh-eninto full effect. Story, § 68. Andlllnguage, however general in its form, when used in connectionwith a partioular subject-matter, will be presumed to be used in
FIRST NAT. BANK OF OMAHA". MASTIN BANK.
433
subordination to that matter, and therefore is to be construed and limited accordingly. ld. § 62. "Applying these rules to the power of attorney under consideration, it appears that the particular subject-matter was the business of Wheeler in the state of Iowa, relating to his real estate, including leasing, collecting moneys due for rents or as purchase money, .and including the satisfaction of mortgages. With· respect to .all business of this general nature within "the state of Iowa, Ripley, as Wheeler's agent, had "unrestricted power and authority ,"and was to act as his "general attorney in fact." The settlement a transaction relating to the particular subject-matter of the agencyS!;and.therefore the agent had discretionary power to accept the mortgaged premises in full for the debt. It is also insisted that no sufficient conside:ration for thecontra-et, relied upon has been shown. This point is not well taken. The agreement w,give up without contest all theland cOl,lered,by the mortgage in of: debt was a good and sufficient Fonsideration for the .agreement to reJease. The val ue of thelland does not, appear, nor·,is it ,"!tmay have been more tbah the mortgage debt, or it may have to it. The.time of obtaining title and posseasionmay have been regarded of great importance. There is some evitendhlgto show thanhere was a defense of usury to part of the claim,: which was waived. But, independently of this, we are of Ophiion that·there was a sufficient consideration. Decree for complainant.
]l'msT NAT.
OF OMAHA 11. MASTIN BANK
et ale
(Circuit Oourt. W. D. Missouri, W. D. October. 1880.) AsSIGmmn'rOR BENEI!'I'r OJ!' CREDITORS--WllAT PASSES-MJSTAXE.
'J)heFil'Bt National Bank was directed by the Mastin Bank, with which it had a running account, to deposit what was. due the latterwlth a third bank. Through a mistake in its accounts,'the National Bank placed more money to the'Mastin Bll-nk'scredit than was aotually due it·. The Mastin Bank ,made a general:assignits assignee del;llanded and received from the third bank all of said money. Held, t'hat the excess could 'be recovered from him, a8 he possessed only the eqUities of his assignor. '
In Equity. Suit by the First National Bank of Omaha against the loJt;astin Bank aJ;ld Kersey Coates, assignee thereof, to recover $1,816.22. The facts ItS agreed upon are substantially ItS follows: August 27, 1878, the Mllstin Bank r.equested the First National Bank of Omaha, with which it had a running account, to deposit to its credit such an amount as was due it, in even hundreds of. dollars, with the Metropolitan Nationa,lBank of New Yprk, and $8,800 was accordingly remitted to saicibank; the books of the First National Bank of Omaha showing , somewhat over that amount to be clue at the time. The First National J3ank.of Omaha had sent to the Mastin Bank for collection a draft drawn by one Faut, wl;lich was collected July 17, 1878; th.e proceeds thereof v.48F.no.6-28 . '