Hawxhurst v. Rathgeb

Citations

• 119 Cal. 531
• 51 P. 846
• 1898 Cal. LEXIS 665

Syllabus

<p>PowBs oí Attorney—Sale and Tbansfeb oí Notes and Mobtsages—No Poweb oí Hypothecation Conferred.—A power of attorney authorizing the attorney in fact to sell, transfer, and release certain mortgages therein specified, and to indorse and transfer the notes thereby secured, and to sell and transfer the claims of the principal for said; notes and mortgages against the estate of the deceased mortgagor,, and to receive payment of said claims and give acquittances therefor, confers only a power to sell and transfer the title to the securities absolutely, or, if not so sold, to collect them from the estate of the deceased mortgagor, and no power is conferred thereby to hypothecate the mortgages as security for borrowed money, and such hypothecation, being in excess of authority is void, and vests no right in the person to whom, the hypothecation is made.</p> <p>Id.—Action by Holder of Securities—Determination op Adverse Claim-Findings against Execution op Power—Special Obdeb Refusing New Tbial—Constbuction of Poweb—Effect upon Findings.—In an action; brought by the holder of a hypothecated note and mortgage which; had been transferred to plaintiff as security for money borrowed by one claiming to act as attorney in fact for the mortgagee, to determine an adverse claim made thereto by the mortgagee, where the-court found that the power of attorney had not been executed by the-mortgagee, and that there was no authority for the hypothecation,, and rendered judgment for the defendant, and plaintiff moved for a new trial on the alleged ground of insufficiency of the evidence-to sustain the findings, and the court denied the motion solely upon the ground that the power of attorney, assuming it to be genuine, conferred no power to assign the note and mortgage as se.uiity for the individual debt of the attorney in fact, and stated that “otherwise, a new trial would have been granted,” held, that the recitals in the order did not operate to change the findings as theretofore exis