[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 327 We are unable to see that upon the facts of this case as settled by the findings of the trial court there is any room for the application of the doctrine invoked in behalf of the appellant. That an agent dealing with innocent third persons, having an apparent ownership or authority conferred by the act of the principal, shall be deemed to be owner or possess the requisite authority as against the principal in behalf of such third persons, whatever the truth may be, is a settled and just rule, but does not apply to the case at bar. Mrs. Westerfield did not confer upon her husband the indicia of ownership. The title to her land never went to him or passed through him. On the contrary her deed, in his possession, showed that she was conveying to Deshon herself upon some contract between grantor and grantee. Her husband in possession of a deed running to Deshon stood, both in appearance and in fact, as her agent to deliver it upon her terms and in accordance with her directions, for he knew that some terms and conditions were imposed by the grantor to qualify the delivery. He knew that the deed was not to be delivered and that the agent was not authorized to deliver it as the absolute conveyance which it appeared to be on its face, but only as collateral security for some liability of the husband which the wife contracted to guarantee. What that liability was it was the duty of the grantee to ascertain. The grantor had given to the *Page 328 husband no authority to agree as to what it should be, and by no act or representation had held him out as possessing any such authority. The husband was not her general agent and Deshon was dealing with a special agent whose authority he perfectly understood was not measured by the terms of the deed, but by the agreement of the grantor pursuant to which the delivery was to be made. He knew that the deed was not what it seemed but was to be given and accepted as an equitable mortgage. The conditions of that mortgage upon which it had been executed and entrusted to the husband for delivery the grantee was bound to correctly ascertain and could not substitute for them different conditions agreed upon by the husband alone. The wife's act did not import such an authority, and the grantee accepting the deed from the husband could not change the conditions upon which it was entrusted to him for delivery or safely assume that he was authorized to determine what they should be. The facts found show that the grantor executed and delivered the deed as an equitable mortgage to secure the payment of $700 of taxes on her husband's lands. They further show that she fully reimbursed that sum to Deshon by a transfer of her rents which he collected to that amount, and so, the condition of the mortgage having been fulfilled, Deshon had left neither title to nor lien upon the property the proceeds of which have been ordered to be paid over to Mrs. Westerfield.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed. *Page 329