Shields v. Hitchman
Shields v. Hitchman
Opinion of the Court
Opinion by
This is an appeal from an order, discharging a rule to show cause why a judgment entered upon a bond and warrant of attorney should not be opened, and execution thereon limited to certain property described. The bond contains the following clause: “It is expressly understood that the lien of this bond shall be limited to the following described real estate,” followed by a description of the land by metes and bounds. The warrant contained a waiver of inquisition “on the herein described real estate” and an agreement that “said estate may be sold on a fieri facias.”
The defendant filed a petition, in which he averred that he purchased from the plaintiffs in the judgment,
In their answer, plaintiffs admitted the sale of the property, and the taking of the bond and mortgage, but denied that an agreement as alleged by defendant was ever made, or was known to them when the sale was made and consummated. It was further averred that the negotiations for the sale were conducted by one Hurst as agent for plaintiffs, and that Hurst never had any authority from them to make any such agreement as defendant described. They also denied that any of the terms of the agreement between the parties, were omitted from the bond by fraud, accident or mistake, and averred that the only effect of the provision inserted in the bond, was to restrict its lien to the premises described in it, in case of the entry of judgment.
Instead of hearing the case in court as required by the Equity Practice Rules, the court below appointed a commissioner to take testimony and report the facts with his opinion. There was no authority for such an appointment, as the office of examiner to take testimony, and that of master of chancery have each been abolished, save in certain cases, of which this is not one. However, no question as to this error in practice is raised by the assignments, and we will regard the evidence as having
The testimony tends to show that Hurst was authorized to agree that a bond and mortgage should be given for the unpaid purchase-money. In the absence of qualifying language, this would mean a bond in the usual form, with unlimited liability on the part of the obligor. A bond involving no personal liability, would be something entirely different, and would be so out of the ordinary course, as to require express authority to empower an agent- to accept it. We agree with the court below that no such authority was shown by the evidence in this case.
The assignments of error are overruled, and the order of the court below discharging the rule to open the judgment, is affirmed. This appeal is dismissed at the cost of appellant.
Reference
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- Syllabus
- Contracts — Variation by parol — Mistahe—Agency—Unauthorized acts of agent — Ratification—Judgments—Opening of judgments. 1. A mistake of legal rights, when everything is known to both parties; is not relievable in equity. 2. A party seeking to charge a principal for the act of an agent must bear the burden of proving the extent of the agency. 3. Where the relation of principal and agent exists, before an unauthorized act of the agent can be ratified by the principal, the principal must have full knowledge of all the facts and circumstances attending the act; the question of ratification cannot arise in the absence of proof that the principal had knowledge of such facts. 4. The purchaser of eertáin land gave in part payment therefor a bond and mortgage; the bond stated “it is expressly understood that the lien of this bond shall be limited to the following described real estate,” and described the land purchased. The vendors of the land were represented in the negotiations and settlement by an agent. Judgment was subsequently entered on the bond by virtue of the warrant of attorney attached thereto. The judgment defendant obtained a rule to show cause why the judgment should not be opened and execution limited to the property described in the bond, alleging that there was a parol agreement that the obligees in the bond were to look only to the mortgaged premises for security, but that by mistake such agreement was not included in the bond. It appeared that the agreement relied on was not made at the time of the execution of the bond, but several days prior thereto. There was no evidence that the vendor’s agent had any authority to make any such agreement. Meld, the lower court did not err in discharging the rule. Equity practice — Masters—Examiners—Evidence tahen by examiners — Appeals. 5. The offices of examiner to take testimony and master in chancery have been abolished, save in certain cases; but where the Court of Common Pleas sitting in equity in a proceeding for the opening of a judgment entered on a bond has appointed a commissioner with direction to take testimony and report the facts, and such error has not been assigned on appeal, the Supreme Court will consider the evidence as having been taken by depositions and will regard only such of the commissioner’s findings as have been adopted by the court below.