This action was brought to compel the surrender to the plaintiff of a certain bond and mortgage which, it was alleged,, belonged to a trust of which the plaintiff was the trustee, and which it was claimed wrongfully came into the possession of the defendant George W. Folsom. There was no imputation of any direct or intended wrongdoing on Mr. Folsom’s part. It appeared that he was the owner of the premises upon which the mortgage was a lien. Prior to July, 1883, that bond and mortgage belonged to Ada L. Sutton. In September, 1885, it was assigned by Ada L. Sutton *41(Saaltield) to Daniel Morison, trustee of the trust mentioned in the complaint. The plaintiff is the substituted trustee of that trust. It appears in evidence that on the 1st day of May, 1886, Mr. Folsom drew a check for interest which fell due that day on the bond and mortgage; that check was drawn to the order of one Francis H. Weeks, as attorney for Ada L. Sutton. He received from Weeks in return a receipt which purported to be that of Daniel Morison, trustee, and it is conceded that that was the first intimation Mr. Folsom actually had of a change in the ownership of the bond and mortgage. During that same month of May, Mr. Folsom, desiring to pay off the mortgage,' went to Weeks and paid to him the sum of $30.15, an amount of interest, and also -the sum of $7,000, being the principal of the bond and mortgage. The check for interest was drawn to the order of Francis II. Weeks.The check for the principal was drawn to the order of Francis II. Weeks, attorney. Those checks were indorsed by Weeks and passed into his private bank account, and the money was never paid over to Morison, trustee. There can be no reasonable doubt that Mr. Folsom knew that Morison was trustee, and that the bond and mortgage belonged to him as such trustee. At the. time these payments were made Weeks delivered to Mr. Folsom the bond and mortgage, and surrendered to him certain assignments thereof, but not the particular assignment f rom Miss Sutton to Morison, trustee. At the same time Folsom received a promise from Weeks to procure and deliver a satisfaction piece of the mortgage. The defense Mr. Folsom makes to the action is that he paid off the principal of the mortgage to the attorney for Morison, the trustee, and that by such payment the debt upon the bond was discharged and the mortgage satisfied in- fact. This claim is based altogether upon the theory that payment to Weeks sufficed to extinguish the indebtedness on the bond and satisfy the lien of the mortgage. It is not pretended that Weeks had any direct authority to accept payment for the creditor. He had received one payment of interest and had the physical possession of the bond and mortgage. But how he got that possession is fmdisclosed. It is not shown that Morison intrusted it to him. It appears by Morison’s testimony only that Weeks’ office was the proper place at which to *42pay interest. It does not appear that Weeks- had the rightful possession of the securities. Morison says that all of his personal securities, as well as'those belonging to the trust, were kept in a tin box belonging to him in Weeks’ safe. Thé argument is- made that because Weeks was authorized to receive interest, and also had in his possession the securities, Mr. Folsom was justified in relying upon the apparent authority of Weeks in accepting payment of the debt secured and surrendering the securities. But those two circumstances standing alone were not sufficient to justify the payment to Weeks. He was not'an attorney in fact. Fie was not a general agent. But the payment was made to Morison’s legal adviser, and the learned counsel for the.defendant Folsom relies upon what has been called the “ scrivener rule ” and insists that it may be applied ■in this case to determine the right of a person paying money to rely ' upon the apparent authority of the one to whom the money is paid. That rule had' its origin in England; where a scrivener. “ was a person to whom money or property was intrusted for the purpose of lending it out to others at a profit payable to his principal, but also at a commission or bonus for himself.” (21 Am. & Eng. Ency. of Law, 881.) The origin and history of that, rule is fully given in Williams v. Walker (2 Sandf. Ch. 325), where it was applied in a case presenting many features in common with the one at bar, and it was-so applied to á payment made to a solicitor upon the analogy existing between solicitors arid attorneys and scriveners under the English law. The .rule is that where a solicitor who makes the loan receives the interest and'has the securities in. his possession at the time of payment of the principal, that principal being due, the' person paying, the money may rely upon the' apparent authority of the attorney or solicitor to receive that money. The authority is not to be inferred only from the attorney having received interest, nor from the 'mere possession of the security, but it must result from the whole control of the investment, from beginning to end, by the attorney or solicitor.. The lender must part with his money to the solicitor for investment and give him absolute control of the whole matter. Thé rule was referred to in Smith v. Kidd (68 N. Y. 130); but the payment was held to be ineffectual there because the attorney did not-have the possession of the securities,'although he originally made the loan and received-the interest In Crane v. Gruenewald (120 *43N. Y. 274) the rule is referred to both iu the opinion of the court and in the dissenting opinion. It is referred to by Parker, J., as follows : “ If a mortgagee permits an attorney who negotiates a loan to retain in his possession the bond and mortgage after the principal is due, and the mortgagor, with knowledge of that fact, and relying upon the apparent authority thus afforded, shall make a payment to him, the owner will not be permitted to deny that the attorney possessed the authority which the presence of the securities indicated that he had; ” and Potter, J-., refers to the rule as being sufficient evidence of authority if the attorney who negotiated the loan is subsequently intrusted by the creditor with the possession of the bond and mortgage. So in Doubleday v. Kress (50 N. Y. 410) it is said that payment of the principal to the agent who took the security or negotiated the loam, for which the security was taken, and was thereafter intrusted by the owner with its possession, is sufficient, and the payment is valid ; and Pecicham, J., states that the reason of the rule that one who has made the loan as agent and taken the security is-authorized to receive payment when he retains possession of the security, is founded upon human experience, that the payer knows that the agent has been trusted by the payee about the same business, and he is thus given a credit with the payer. The law as applied in this state, being derived from the English rule, which had its origin in the relation of the scrivener to his client, the same elements must exist in order to protect the payer in making payment. There is no evidence whatever in this case to show that Weeks was employed by Morison to make this investment. Therefore, there is nothing to show that that confidence was reposed in him. All that appears is that one payment of interest was made to Weeks, after Morison, trustee, became the owner of the bond and mortgage, and that, when he went to pay off the mortgage, the bond and mortgage itself was in the physical possession of Weeks. But the assignment by which the title to the bond a/nd mortgage was vested m Morison, trustee, was not in Weeks' possession. He did not deliver it to Folsom, and, therefore, he did not (so far as appears) have that which was the muniment of the trustee’s title to the bond and mortgage.
There was a failure of proof, therefore, of material facts which it was necessary to show in order to justify Mr. Folsom in relying upon *44an apparent authority possessed by Weeks to receive payment of the principal, and for that reason the judgment should be reversed and a new trial ordered, with costs to abide the event..
Van Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred: