I. Defendant insists in this court that he established, by the evidence above set forth, two defenses:
1st. That he signed the note subsequent to its execution and delivery, and without any new, or indeed without any consideration.
*2792d. That the execution, of it by him was procured by the false and fraudulent representation of Bird, the school fund commissioner, that he had examined the title of the land mortgaged by Haskell, that itw as all right and ample security for the note.
1. cos™deratto™' action, As to the first it may be doubted whether it is made a substantive defense in the answer. But if this be conceded, ^t may well be questioned whether, upon the defendent’s own evidence, it distinctly appears that the loan to Haskell was a complete and past transaction at the time the appellant signed the note. Haskell and Bird came to him together and stated that the money had been borrowed, but that they must have another name.
2. pbactagof t£ei‘ court: presumption. If the District Court found on the evidence that this defense was not sustained, this finding was not so clearly wrong as to j ustify us in interfering; indeed we think the finding was right. This class of cases are tried as at law and the finding of the court below has the same presumptions in its favor, as obtain in favor of the verdict of a jury.
II. So in respect to the defense of fraud, the same presumption of correctness attaches. The defendant did not show that Bird’s representation that he had examined the title, was false. For aught that was shown, Bird did examine the title of Haskell, and did find it to be, as he believed, all right. If so, Bird’s representations would not have been fraudulent, even though he was mistaken, and it should turn out, as it did, that in point of fact, Haskell had no title. And the court place their affirmance of the judgment of the court below upon the basis that the appellant has not made such a clear case as will, upon the well known rules which govern appellate tribunals, justify an interference on the ground that the judgment was against the weight of the evidence. So much as to the facts.
*2803 agentfaedreprei sentation. III. There is involved in the case, also, an interesting question of law respecting the force and effect of acts of Pu^'c officers or agents, which it is proper briefly to notice. Let it be assumed that the appe]iant ha<j succeeded in establishing that it was Bird, the school fund commissioner, alone, who came to him to get him to sign the note; that he represented that he had examined the title, when in fact he had not; also that the title was good, when in fact he knew it to be false; suppose the appellant had clearly shown this state of facts, would it have been a defense against the State of Iowa, the owner of the said fund, which was intrusted to the management of the school fund commissioner to invest?
The powers and duties of this officer, in loaning out the fund, were prescribed by statute. Code, 1851, § 1100, et seq. This required a note to be executed by the borrower, “with two good sureties, secured by mortgage on real estate of the unincumbered value of double the amount of the money loaned,” the value of the land to be fixed by three appraisers.
Now, it may be admitted that such an officer, when acting within the apparent scope of the power given to him, may, in some cases, in favor of third persons acting in good faith, bind the State by his fraudulent acts and representations. But such an officer cannot bind the State, when he does an act, or makes a representation,.which is not within the scope of his authority. Now the appellant is charged with notice that the law required “ two good sureties.” How, then, could he trust a declaration that his name was wanted merely as a matter of form ? It was no part of the duties of a school fund commissioner to procure sureties for the borrowers of the fund. It is the duty of the borrower to furnish the sureties. It was no part of the commissioner’s duty to make representations to others, with respect to the title or value of the lands appraised to be taken as security. *281The law confers upon him no such power, and such a power is not necessary to enable him properly to discharge his official duties. It exists, therefore, neither expressly nor by implication.
It will be borne in mind that Bird’s alleged representations as to the slate of the title and value of the land, were not of foots peculiarly within his own knowledge, but of facts readily susceptible of ascertainment, equally open to both parties. In such cases the unauthorized act of an agent, especially a public agent whose powers and duties are defined by express statute, are not binding upon his principal or the public. See, on this subject, Clark v. City of Des Moines, 19 Iowa, 198, and the cases there referred to, particularly Mechanics' Bank v. The New York and New Haven Railroad Company, 13 N. Y., 599; Mechanics' Bank v. Butchers' and Drovers' Bank, 14 Id., 623; S. C., 16 Id., 125; Claflin v. Farmers' and Citizens' Bank, 25 Id., 293; Griswold v. Haven, 25 Id., 595; Exchange Bank v. Monteath, 26 Id., 505; Webster County v. Taylor, 19 Iowa, 117; Estep v. Keokuk County, 18 Iowa, 199.
Representations of the character alluded to were representations by Mr. Bird individually, and not as fund commissioner. If the defendant has suffered thereby, his remedy is upon Mr. Bird for the fraud, and not upon the State, which never authorized Mr. Bird' to make the representations either expressly or by implication, as being necessary to the discharge, or in the line of his official duty.
Whether we regard 'the case as an appellate court must regard it, or, without being thus fettered, consider it upon its broad merits in the light of the principles of the law applicable to the acts of public agents, or officers, we equally reach the conclusion that the decision of the District Court was correct. Its judgment is therefore
Affirmed.