Hawxhurst v. Rathgeb

California Supreme Court Jan 5, 1898 No. S. F. No. 608Published

Before: Beatty, Fleet

AI Brief

AI-generated · verify before citing

Holding. The court held that a power of attorney granting authority to sell and transfer securities does not authorize the agent to pledge or hypothecate those securities for a loan. Consequently, the agent's act of pledging the securities was void, regardless of the authenticity of the power of attorney.

Issues

Whether recitals in an order denying a new trial can modify or change the original findings of fact.
Whether a power of attorney to 'sell and transfer' securities confers authority to pledge or mortgage them as security for a loan.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“There is nothing in the language which by any proper construction purports to confer a power to pledge or hypothecate the securities for any purpose, or to borrow money thereon.”

“The act of Royce, being in excess of the authority conferred, was void, and vested no right in plaintiff.”

Synopsis

PowBs oí Attorney—Sale and Tbansfeb oí Notes and Mobtsages—No Poweb oí Hypothecation Conferred.—A power of attorney authorizing the attorney in fact to sell, transfer, and release certain mortgages therein specified, and to indorse and transfer the notes thereby secured, and to sell and transfer the claims of the principal for said; notes and mortgages against the estate of the deceased mortgagor,, and to receive payment of said claims and give acquittances therefor, confers only a power to sell and transfer the title to the securities absolutely, or, if not so sold, to collect them from the estate of the deceased mortgagor, and no power is conferred thereby to hypothecate the mortgages as security for borrowed money, and such hypothecation, being in excess of authority is void, and vests no right in the person to whom, the hypothecation is made.

Id.—Action by Holder of Securities—Determination op Adverse Claim-Findings against Execution op Power—Special Obdeb Refusing New Tbial—Constbuction of Poweb—Effect upon Findings.—In an action; brought by the holder of a hypothecated note and mortgage which; had been transferred to plaintiff as security for money borrowed by one claiming to act as attorney in fact for the mortgagee, to determine an adverse claim made thereto by the mortgagee, where the-court found that the power of attorney had not been executed by the-mortgagee, and that there was no authority for the hypothecation,, and rendered judgment for the defendant, and plaintiff moved for a new trial on the alleged ground of insufficiency of the evidence-to sustain the findings, and the court denied the motion solely upon the ground that the power of attorney, assuming it to be genuine, conferred no power to assign the note and mortgage as se.uiity for the individual debt of the attorney in fact, and stated that “otherwise, a new trial would have been granted,” held, that the recitals in the order did not operate to change the findings as theretofore existing, and that they remained as originally made, and could only be set aside by the granting of a new trial.

Opinion — Fleet

VAN FLEET, J. Appeal from judgment and order denying a new trial. The action involves the rights of the parties in two certain notes and mortgages executed by one Kunz to defendant, which plaintiff claims to own by virtue of an assignment and delivery thereof to her, made in defendant’s name by one C. E. K. Royce, claiming to act as attorney in fact for defendant under an alleged power of attorney from defendant to said Royce.

The trial court found that defendant never executed the power of attorney to Royce, and that the latter had no authority to make the assignment of the securities, and gave judgment in favor of defendant.

Plaintiff moved for a new trial, on the ground, among others, of insufficiency of the evidence to warrant the findings. In passing upon this motion, the court made an order, the material part of which was as follows: “It is ordered that said plaintiff’s motion for a new trial of this action be and the same is hereby denied. This order is made solely upon the ground that, even assuming that the letter of attorney from defendant to Royce was executed by defendant, it conferred upon Royce no power to assign the note and mortgage therein mentioned to secure his individual debt. Otherwise a new trial would have been granted.”

Plaintiff contends that the effect of the language used by the court below, in its order denying a new trial, was to change and reverse its finding that defendant did not execute the power of attorney to Royce, and to substitute therefor a finding in favor of the due execution and authenticity of that instrument; and, as plaintiff further contends that the court misinterpreted the legal effect of the power of attorney in holding that it did not authorize Royce to assign the securities in question to secure his individual debt, her proposition is in substance that the judgment is left without support in the findings, and must be reversed.

But whatever the effect of the recitals in the order relied on by appellant, they did mot operate to change the findings in [533]the case as theretofore existing. After findings have been filed, and judgment entered thereon, there is but one method by which those findings can be competently changed or modified—except perhaps in respect of a mere clerical error or misprision—and that is the mode pointed out by the statute, by the granting of a new trial. Until the findings are thus set aside, they must, under our present system, stand in their integrity as originally made. (Pico v. Sepulveda, 66 Cal. 336; Thompson v. While, 63 Cal. 505; Hayne on New Trial and Appeal, sec. 247, and cases cited.)

Hawxhurst v. Rathgeb

AI Brief

Synopsis

Opinion — Fleet

More from California Supreme Court

Related research

Concurrence — Beatty

AI Brief