The complaint alleges that the plaintiff is the owner and entitled to have possession of the land described therein; that the defendant is in possession thereof and unlawfully withholds the same from him, etc. The answer denies such allegations, except as to the possession, which it is alleged is lawful, etc. It is further alleged therein that the husband of the feme defendant was the owner in fee of the land, and he and she, on or about 14 March, 1878, executed a deed of mortgage of the same to Franklin Gay, to secure a debt due from her husband to him for $600; that $96 of this debt was paid on 14 March, 1880; that on 22 December, 1885, the said Gay having died, leaving a will, his executor, John B. Holman, sold the land by virtue of a power contained in said will, and the feme defendant bid the same off at the price of $900; that since she so bought, the mortgage debt has been paid and the mortgage discharged, but she never received a deed for the land; that the plaintiff at the time he purchased any pretended interest in the land, had full knowledge of her rights as such purchaser, etc.; and the answer demands judgment that the said Holman and others make deed to her, etc.
Among other appropriate issues which the court submitted to (521) the jury is the following, to which they responded in the negative: "Did the defendant Mary E. Morrison purchase said land under the mortgage and at the mortgage sale, as she alleges in her answer?"
On the trial the plaintiff put in evidence the mortgage deed referred to, which contained a power authorizing the mortgagee Gay and his executor to sell the land for the purpose of the mortgage. He then proved the death of the mortgagee; the appointment and qualification of J. B. Holman as executor of his will. He further put in evidence a deed from the said executor to C. L. Summers, who purports to have been the purchaser of the land for him. This deed was objected to on *Page 379 the ground that the power of sale mentioned could only be executed by the heirs at law of said Gay, and not by the executor of his will. The court declined to sustain this objection, and this is assigned as error.
The plaintiff then put in evidence a deed in trust for the land from said C. L. Summers to himself.
The defendant introduced one Stevenson, and proposed to prove by him that a day or two before the mortgage sale by Holman, at which feme defendant claimed to be purchaser, said C. L. Summers told him the arrangement had been made for the defendant Mary E. Morrison to purchase the land as a home for herself and her children, and that he, Summers, was going to pay it for her; said Holman having already testified for the plaintiff that no money was paid at said sale; that Mrs. M. E. Morrison, the defendant, was the bidder, and that he took the note of said C. L. Summers for the purchase-money and returned the mortgage marked satisfied, to E. F. Morrison, the mortgagor. Upon plaintiff objecting to this evidence the same was excluded, and the defendant excepted.
The plaintiff, testifying in his own behalf, was asked what E. F. Morrison, husband of feme defendant, and who had put (522) in no answer, said to witness two or three years after the mortgage sale, about the wife's purchase of this land in controversy at the mortgage sale. The defendant objected to this evidence; objection overruled.
The evidence admitted as against E. F. Morrison only, he being at the time of said declaration proposed to be proved living upon the land with his wife, the feme defendant, and witness proceeded to state that E. F. Morrison told him that C. L. Summers had fixed things now to suit himself, and that said Summers might take what was his own, referring to defendant M. E. Morrison and her children, and he, E. F. Morrison, was going to Texas; that he would give up the land without trouble, and that he had but recently heard of his wife's claim upon said land.
Mary E. Morrison appealed. The appellant's principal contention is that the executor of Gay, the mortgagee, had not power under and in pursuance of the mortgage deed to sell the land in controversy, and execute to the purchaser a deed effectual to pass the title thereto to Summers. This objection is untenable. The deed of mortgage expressly empowered Gay or his executor to sell and convey the *Page 380 land, and there is no reason in legal contemplation why this might not be done. In and by the deed the mortgagor and mortgagee agreed that the latter might execute the power, and if for any reason he could or should not do so in his lifetime, his executor after his death might. He made his will and therein appointed an executor; he died and the executor, Holman, qualified as such, sold and conveyed the land by deed, and thus the power was sufficiently executed. To provide that (523) an executor shall execute a power designates with certainty the person to be charged for the purpose. If no executor had been appointed, then the appellant's objection might have had some force at the time the deed was executed. Demorest v. Wynkoop, 3 Johns, Ch. 145; 2 Jones Mort., sec. 1786.
The statute, however (Laws 1887, ch. 147), expressly confers upon the executor of a deceased mortgagee all the powers, rights and duties he had to enforce the mortgage. This statute applies to cases where the executor is not mentioned in the power. In this case, the executor was in terms authorized to execute it.
The evidence rejected, offered by the appellant, so far as appears, was not pertinent for any proper purpose. She alleges in her answer that she bid the land off at the sale, and that it was thereafter paid for and the mortgage discharged, but she does not at all allege that she paid for it or that she gave her note or other obligation for the purchase-money; nor does she allege that Summers gave his note for the purchase-money and afterwards paid the same at her instance, and took the deed for the land for her benefit and that of her children, or that he agreed to do so. Much of this testimony was mere hearsay, and none of it was pertinent in any aspect of the pleadings. It was properly rejected.
The testimony of the plaintiff objected to, but admitted, on the trial, was, in view of the findings, scarcely pertinent, but it was harmless.
In no view of the case, as it appears to us, was the appellant entitled to a verdict or judgment.
Judgment affirmed. *Page 381
(524)