Parsons v. Silva

COOPER, J.

Appeal from judgment on a bill of exceptions.

The amended complaint alleges in substance: That on the twenty-first day of December, 1895, the plaintiff was the owner of a tract of land described in the complaint of the value of six hundred dollars, upon which she desired to secure a loan of five, hundred dollars for the purpose of enabling her to appeal to the supreme court from a judgment rendered against her in the superior court of Alameda County; that she consulted defendant Frank Silva, who was acting as a loan agent, in regard to obtaining a loan upon the said real estate, and at Silva’s request and by his advice she executed an instrument, making him her attorney in fact for the purpose of executing a mortgage upon the property and securing the loan, and at the same time plaintiff delivered to Silva her title papers; that it was the agreement that the money should not be borrowed, nor the mortgage executed, except for the purpose of obtaining money by which plaintiff could carry on the contemplated appeal, and if plaintiff should subsequently decide to abandon the appeal the defendant, Silva, was not to proceed further with the loan; that subsequently, on the twenty-fourth day of January, 1896, the plaintiff decided to abandon the contemplated appeal and so notified Silva, and demanded of him that the power of attorney be canceled and her title papers surrendered, but Silva stated to plaintiff that he could not find the power of attorney nor the title papers; that prior to January

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1896, said Silva had, under the said power of attorney, and without plaintiff’s knowledge, executed a note and mortgage upon said land to one Rauer for five hundred dollars, which sum defendant Silva received and appropriated to his own use, no part of which was received by plaintiff; that the mortgage and power of attorney were not placed of record until about six months after the mortgage was executed, and plaintiff then for the first time discovered the fact, and thereupon immediately went to defend

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ant Frank Silva for an explanation, and he denied that he ever executed the note and mortgage, or that he ever received the five hundred dollars, or that he knew anything about the placing of the power of attorney or mortgage upon record; that afterwards, when threatened with legal uroceedings by plaintiff, in order to satisfy her and to get her to forbear such contemplated proceedings, defendants, who are husband and wife, executed an agreement in writing of which the following is a copy, to wit:—