I concur in the conclusion reached ■ by Mr. Justice Patterson, that there should be a new trial. It is not clear from the testimony that when the defendant paid Weeks the principal of this bond and mortgage such payment was to; Weeks as attorney in fact for the. assignee of the mortgage. It does not appear that any statement was made at the time of the payment of the IT,.000 as to any authority of Weeks to receive the payment of the principal, or as to the circumstances connected with the possession of the bond and mortgage by Weeks. There is nothing to show that-this money was paid to Weeks as attorney in fact for Morison rather than the attorney for the defendant Folsom. Weeks had been acting as attorney for both • the defendant and for Morison as trustee, and it is not at all clear that .the defendant Folsom did not recognize Weeks as his attorney at the timé of this payment, and intrust him with the money for the purpose of paying the mortgage and procuring the necessary instruments to satisfy it of record. When the defendant called upon Weeks, Weeks produced the .bond and mortgage, with the various assignments which vested the title to the mortgage in Morison as trustee. The transfer to Morison was not recorded, and the money was paid to Weeks by a check drawn to the order of Francis H. Weeks, attorney, without specifying the person for whom' he was attorney, and was delivered to Weeks, with a statement from Weeks that he would cause the assignment of the mortgage to Morison to be recorded, and would procure from Morison a satisfaction' piece of the mortgage, which he also, agreed to have recorded, so that the mortgage could be satisfied upon the record. As to the recording of these instruments and the proper satisfaction of the mortgage upon the record, Weeks was requested by the. defendant to act as defendant’s attorney, and not as attorney or agent for Morison. Thus, the principle upon which a payment to an attorney *45who has possession of the securities or obligations to be satisfied binds the person for whom he assumes to act in receiving payment, would not apply. The principle upon which it has been held that a scrivener or attorney who invests money for a client, and who retains the securities or evidences of indebtedness, is presumed to be intrusted with a power to receive the principal and interest, seems to be largely based upon the implied authority granted to an attorney through whom the loan has been made, to receive the principal implied by the attorney’s retaining possession of the security evidencing the indebtedness. The case upon which this doctrine rests seems to be that of Whitlock v. Waltham (1 Salk. 157). The facts, of that case are stated as follows : “ The interest of a mortgage was paid to and received by the scrivener that put out the money; the scrivener proved insolvent, and the .question was, who should bear the loss ? ” And it was decided in that case that if the scrivener be intrusted with the custody of the bond, he may receive the interest,, and, though he fails, yet the mortgagee shall bear the loss; and that, is also so, if he receives the principal'and deliver up the bond, for, being intrusted with the security itself, it shall be presumed he is intrusted with the power over it, and with a power to receive the principal and interest, and the rather because the giving up of the bond upon the payment of the money is a. discharge thereof; otherwise if the obligee' take away the bond, for then he hath no authority to receive any money. That case has been followed by a long line of authorities in England and in this country ; but in every case that I have been able to discover, authority to receive payment has been inferred from the mere possession of the instrument or obligation evidencing the indebtedness only in the case of a scrivener or attorney who represented the creditor in making the loan, and where the possession of such evidence of debt was continued in the possession of such scrivener or attorney. It is not alleged that the mere possession of an instrument or obligation, payable to another, unindorsed, invests the holder of such instrument with the right to; receive from the obligor or debtor payment of the obligation. It is. only where an agency has existed at the inception of the transaction,, viz., the making of the loan, which is continued by the creditor or obligee allowing the obligation to remain in the hands of the attorney, that a debtor is entitled to presume that the original authority *46to make the loan has been continued and enlarged so as to confer an authority to receive payment thereof.
The authorities cited .by the respondents, holding that where the owner of property has invested a third person with the apparent, title to it, any one acting in relation to the property relying upon such apparent title so conferred is protected, do not apply to this case; because .those authorities are based upon the principle of' estoppel, the owner being estopped from denying that the person upon whom he has conferred the apparent title to the property is the owner. Here Morison never' conferred upon Weeks the apparent title to this bond and mortgage, the mortgage standing in the name of Morison as trustee, of which fact the' defendant had notice.. It does not appear from the record that Weeks acted as attorney for Morison, or for the estate of which Morison was trustee, in making this investment of the trust estate;' nor does it appear that the possession of Weeks of this bond and mortgage-was authorized by Morison, so that Weeks rightfully had possession.' The mere fact that Morison’s box containing the securities of the estate was left in a safe in Weeks’ office Was hardly of itself sufficient to show that the custody of. the security was given to - Weeks.'. The evidence failed,■ therefore, to bring the case within the authorities cited to show that Weeks, as attorney for the estate, had made the'loan and had been allowed by the -obligees to retain possession of the securities after the investment by the estate of 'its money.
I, therefore, concur in directing a new trial.
Judgment reversed, new trial ordered, costs to appellant to abide event.