Tubman v. Lowekamp

Stewart, J., delivered the opinion of the Court. It is shown by the decided preponderance of the testimony in this cause, without going into its particulars, that Lucy A. . Tubman was deceived in the transfer of the mortgage agqinst S. M. Tubman, to John B. Lowekamp. Her assignment of the mortgage was necessary to pass the legal title to the property ; and.its equitable effect, if the consideration. had been paid according to its terms, would have been to vest in Lowekamp, the assignee, the debt or note it was intended to secure.

After a bona fide assignment she could not set up as an equitable defence against such operation, that she had not assigned the note. That would be not only a breach of good faith, but a gross fraud upon the assignee. That there was a design to perpetrate a fraud upon the assignee by her retention of the note, has not been alleged or proven, and is not to be presumed. ³²³ The mortgage held by Lucy A. Tubman, and the note, were parcel of the same transaction ; and these instruments did not admit of separate and independent transfer. Pratt vs. Vanwyck’s Exc’rs, 6 G. & J., 499 .

It is apparent from the tenor of the proof, there are circumstances calculated to create a suspicion that Lowekamp, the assignee, may have been privy to the fraud, in the procurement of the assignment, but they do not afford full and satisfactory evidence of his complicity therein. Assuming from the character of the testimony, that both Lucy A. Tubman,'* the assignor, and John II. Lowekamp, the assignee, are innocent of any fraud in the transaction, it becomes necessary to determine their relative rights upon that hypothesis. Lucy A. Tubman by the execution of the assignment of the mortgage,.and its delivery to S. M. Tubman for the purpose of receiving the $2000, the consideration thereof, constituted him her special agent for that purpose.

S. M. Tubman was thus enabled to get possession of the money advanced by Lowekamp, and to apply it to his own purposes. But he was clothed with no authority as the special agent of Lucy A. Tubman, to receive from Lowekamp anything but the money due upon the mortgage His acceptance of the judgment, or its transfer to Lucy A. Tubman in part payment of tire assignment of the mortgage, was not within the scope of his authority, nor according to any instructions received from her, and was not binding upon her. Tubman, as her agent, was invested with limited powers; and it was the duty of Lowekamp to have ascertained the extent of his authority. See Chitty on Contracts, 200, stating the rule.

But so far as he received the money from Lowekamp, however misapplied by him, she was bound, unless ³²⁴ Lowekamp was