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U. S. R. S., sec. 5136; Bullard v. National Eagle Bank, 18 Wall. 589; Matthews v. Skinker, 62 Mo. 329; 21 Am. Rep. 425; Wiley v. First Nat. Bank, 47 Vt. 546; 19 Am. Rep. 122; First Nat. Bank v. Hoch, 89 Pa. St. 324; 33 Am. Rep. 769. This rule of law must be presumed equally well known to both parties.

The paper not being the contract of the bank, then can it be said to be the contract of Wilcox himself? Does it, upon its face, appear so clearly to have been intended as the undertaking of the bank, executed through Wilcox as its cashier and agent, as to bring it within the rule that his want of authority to bind the bank, for which he assumed to act, does not render him individually liable, when the facts and circumstances indicate that no such liability was intended by either of the parties? In deciding this question, weight must be given to the argument that the writing of this letter will not lightly be assumed to have been a mere idle ceremony. We must assume that the parties to it intended it to have some effect. The cases in Missouri (Michael v. Jones, 84 Mo. 578; Humphrey v. Jones, 71 Mo. 62; and Western Cement Co. v. Jones, 8 Mo. App. 373), relied on by counsel for defendant, were all cases in which the guardian of an insane person had traded with his ward's estate, contrary to the provisions of law, and had suffered losses. The persons dealing with him had done so with full knowledge of the fact that he was acting, not for himself, but for his ward. It was held that where the facts are known to both parties, and the mistake is one of law as to the liability of the principal, the fact that the prin cipal cannot be held is no ground for charging the agent.

We cannot apply that rule to this case, for the reason that it does not clearly and unequivocally appear that Wilcox was claiming to act for the bank, and that he was not intending to bind himself. To say that he intended to bind the bank is to suppose him ignorant of the plain rules of law governing the institution of which he was a principal officer. There are many cases in which it has been held that the addition to one's signature of his title does not make the paper the contract of the corporation in which he is an officer. Such designation has been treated as a mere description of the person: Tilden v. Barnard, 43 Mich. 376; 38 Am. Rep. 197; Hayes v. Brubaker, 65 Ind. 27.

The second argument advanced in support of the judgment is, that there was no proof in the case that the plaintiff signed

the replevin bond as he alleged in his declaration. I think this point is without force. The judgment record in the suit brought upon the replevin bond shows a copy of the bond set out at length in the complaint, as the only cause of action relied on. It will be presumed in support of such judgment that it was rendered after due proof of the execution of the bond declared on. For the purpose of identifying the judg ment as rendered upon the bond signed by plaintiff at defendant's request, parol testimony was admissible. I think, also, a foundation was laid for the admission of secondary evidence of the execution of the bond. It was never in the possession of the plaintiff. It was delivered in the first instance to the sheriff at Elkhart, Indiana, and by him assigned to Mrs. Warner, who brought suit on it in that state. Presumably, therefore, it was out of the jurisdiction of the courts of this state, and secondary evidence of its contents was admissible: Woods v. Burke, 67 Mich. 674.

The third reason urged by defendant in support of the judgment is, that the judgments rendered in Indiana, for the payment of which plaintiff seeks to recover, were collusive and fraudulent as to him, and that he was not bound by them. If he is right in this position, still the questions involved in such a claim are not such as should have been passed upon by the court, as was done in this case. The question of fraud and collusion was for the jury, and should have been submitted to them, if properly in the case, under proper instructions.

As the case must go back for a new trial, I think it proper to say that the Indiana judgments, while prima facie evidence of the amount which the defendant is liable to pay to indemnify the plaintiff, are not conclusive upon him. He had no notice of the pendency of the first suit, and the judgment in that suit was finally entered by consent. It is open to him to impeach the good faith of this transaction if he can do so. If Mr. Knickerbocker employed counsel in good faith to defend that action, it was proper for him to do so, and any expense incurred by him in such defense was incurred for the benefit of Wilcox, as well as himself, and Wilcox would be liable to indemnify him against such payment. Of the suit brought by Mr. Van Fleet against Mr. Knickerbocker for counsel fees, Mr. Wilcox had due notice, and was asked to defend. Having declined to do so, we think he is bound by the judgment, unless it appear that it was rendered under such circumstances

of collusion between the parties as would amount to a fraud upon Wilcox.

The circuit judge was wrong in directing a verdict for the defendant, and the judgment must be reversed, and a new trial granted.

AGENCY-LIABILITY OF AN AGENT UPON AN UNAUTHORIZED CONTRACT. -The general rule is, that an agent is not liable upon a contract signed by him without authority, unless such contract contains apt words to charge him personally: Wallace v. Bentley, 77 Cal. 19; 11 Am. St. Rep. 231, and note. But the words "agent," "trustee," and such like words, do not show an intention to act in a representative character, being words merely descriptio persona: Peterson v. Homan, 44 Minn. 166; 20 Am. St. Rep. 564, and note. The agent must show his principal liable upon the contract made by him, or he will be himself liable: Stone v. Wood, 7 Cow. 453; 17 Am. Deo, 529, and note; note to Means v. Swormstedt, 2 Am. Rep. 332, 333; Tarver ▼. Garlington, 27 S. C. 107; 13 Am. St. Rep. 628, and note.

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EVIDENCE, SEcondary, when Proper. The contents of a paper which is beyond the jurisdiction of the court may be proved by secondary evidence without accounting for the non-production of the paper: Manning v. Maroney, S7 Ala. 563; 13 Am. St. Rep. 67.

FRAUD, QUESTION OF, IS FOR WHOм. - Fraud is ordinarily a question of fact for the jury: Note to Brown v. Mitchell, 11 Am. St. Rep. 757, 758.

JENNINGS V. MOORE.

[83 MICHIGAN, 231.]

MORTGAGES-PRIORITY AS BETWEEN MORTGAGE NOTES. - Where several distinct notes are secured by one mortgage, no one of them has any pref. erence over the rest in consequence of falling due at an earlier date. MORTGAGES ASSIGNMENT OF PART INTEREST IN MORTGAGE CANNOT BE VARIED BY PAROL. — A sale and assignment of two of three mortgage notes and of a corresponding interest in the mortgage, containing no men. tion of priority of lien, cannot be varied by parol evidence to show an oral agreement that the assignee was to have a prior lien under the mort. gage as security for the payment of his notes. MORTGAGE ASSIGNEE'S FORECLOSURE OF PART INTEREST

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PRIORITY OF

LIEN REDEMPTION. An assignee under an assignment of a part interest in a mortgage and the notes secured thereby, containing no provision for any priority of lien, who has foreclosed, and upon the expiration of the time in which to redeem has purchased the equity of redemption, and has gone into possession under his sheriff's deed, does not thereby gain any priority of right over the assignor; but as the purchaser of the equity of redemption, he has a right to redeem from the lien of the assignor, and failing to do this, the premises will be sold and the proceeds divided according to the respective interests of the assignor and assignee.

G. M. Valentine, for the appellant.

George S. Clapp and A. Plummer, for the respondent.

LONG, J. The bill was filed in this cause to foreclose a mortgage upon real estate given by Mary L. Moore to the complainant.

The history of the transaction out of which this proceeding grows is, as set forth in the bill, that on May 9, 1874, complainant sold and conveyed ten acres of land to defendant Mary L. Moore for the sum of three thousand dollars, and she and her husband, Orrin E. Moore, gave complainant their notes for that amount. One note was for the sum of $500, due in one year, and there were two other notes, for the sum of $1,250 each, due in two and three years from date, respectively, all drawing interest at the rate of ten per cent per annum. To secure the payment of these notes, Mrs. Moore made and executed a mortgage for three thousand dollars. upon this ten acres of land, and also upon forty acres of other land. This forty acres was also encumbered by a prior mortgage of four thousand dollars.

Soon after the execution of this mortgage and the notes, Abram Smith, the other defendant herein, sold to complainant his farm, and took towards the purchase price thereof the two notes first to fall due given by Mrs. Moore, that is, the $500 and one of the $1,250 notes, Jennings retaining the other note. At the time of this purchase, Jennings made an assignment in writing to Smith of that part of the Moore mortgage represented by the two notes so transferred to him. This assignment specifically sets forth the interest in the mortgage which Jennings transferred to Smith, as that part of said mortgage represented by said first two notes. None of the notes were ever paid.

In December, 1875, Smith began foreclosure proceedings by advertisement, and on March 22, 1876, the premises, consisting of said ten acres, were sold to Smith at sheriff's sale, for the amount of the five-hundred-dollar note, interest, and costs. When the year for redemption expired, Smith took possession under the sheriff's deed, and has ever since been in possession of the premises, claiming title through the sheriff's deed. Jennings has never made any claim to the premises, or attempted to assert any rights under his note and remaining interest in. said mortgage, until the commencement of this suit.

Defendant Smith in his answer substantially admits the facts set up in the bill, but avers that at the time he took the notes from Jennings, and received the assignment of such part of the mortgage, it was expressly agreed and understood

that he was to have a lien under his two notes prior to any claims Jennings might have under the last note retained by him.

Testimony was taken in the cause, and Smith testified substantially to the facts set up in his answer. Complainant testified and claimed on the hearing that the purpose of the assignment was to sell to Smith only so much of the mortgage as secured the payment of the two notes sold to him, and that he (Jennings) still holds and owns an interest in the mortgage in the same proportion that his note bears to the whole debt; that is, that he holds and owns five twelfths, and Smith seven twelfths, of the mortgage, and that his rights were in no manner affected by the foreclosure made by Smith. Mrs. Moore did not appear, and the bill was taken as confessed as to her.

On the hearing, the court below decreed that the foreclosure proceedings had by Smith by advertisement be set aside, and the premises be sold, the moneys arising from the sale to be divided between Jennings and Smith in proportion to their respective interests; that is, to Jennings five twelfths, and to Smith seven twelfths. From this decree defendant Smith appeals.

The assignment does not state that Smith's two notes were to be held as prior liens over the note retained by Jennings. It does not purport to assign the whole interest which Jennings had in the mortgage, but only that part represented by the two notes given over to Smith. Whatever the understanding was as to which should have priority of lien cannot be shown except by the assignment itself. That was the agreement between the parties, and it cannot be changed or varied by parol evidence. Taking the assignment, then, as the agreement, it appears that Jennings was to and did retain five twelfths of the mortgage, and only transferred to Smith seven twelfths. This was an installment mortgage, and under the statute each installment must be taken and deemed a separate and independent mortgage: Howell's Statutes, subd. 4, sec. 8498. While this is so, where these. several distinct payments are thus secured by one mortgage, no one of them has any preference over the rest in consequence of falling due sooner, but all have equal claims to be paid ratably out of the land: Cooper v. Ulmann, Walk. Ch. 251; English v. Carney, 25 Mich. 178; McCurdy v. Clark, 27 Mich. 447.

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