Conser v. Coleman

Per Curiam.

This is a suit to foreclose a mortgage executed by R. B. Cochran to the plaintiff. The defendant Charles R. Cochran, answering the complaint, which is in the usual form, alleged that the mortgage covered, with other property, a life interest of his father in a tract of land of which he was the owner in fee of an undivided one fourth; that after the execution of the mortgage it was agreed by and between the mortgagor and mortgagee and himself that if he, the said Charles, and his wife, would deed their interest in a certain eighty-acre tract thereof to one J. E. Roach, and permit the purchase price to be applied on the mortgage, the mortgagor would deed to him, in lieu thereof, and the plaintiff would release from the lien of such mortgage, a certain other tract; that in pursuance of this agreement, and in reliance thereon, he and his wife signed and executed the deed to Roach, and the proceeds thereof were received by the plaintiff, and applied on the mortgage; and that he immediately thereafter went into possession of the tract of land agreed to be conveyed to him by the mortgagor, and has ever since occupied the same. The reply denying the allegations of the answer, evidence was taken, a trial had, resulting in a decree in favor of the plaintiff, and said defendant Charles R. Cochran appeals.

The question in the case is one of fact, and while it is clearly shown from the evidence that the appellant and his father, the mortgagor, entered into the agreement and contract set out in the answer, and that, relying thereon, the appellant and his wife executed the deed to Roach, it is equally as clear that such contract was made without the authority or consent of plaintiff. Indeed, it was not seriously claimed at the argument that she was a party to the agreement; but the contention is that, having received the proceeds of the land sold to Roach, and applied them on her mortgage, she thereby ratified the contract under which such proceeds were acquired. But it is elementary law that, before one can be held to have ratified the unauthorized acts or contracts of another, he must have knowledge thereof; and there is no pretense that plaintiff knew at the time she received the money of any agreement between the defendant and his father concerning the release of her mortgage. Nor is there any room in the case for the doctrine of subrogation. The decree is affirmed.

Affirmed.