COMMERCE TRUST CO. v. JAMES

COMMERCE TRUST CO. v. JAMES
1926 OK 755
249 P. 407
119 Okla. 296
Case Number: 16831
Decided: 09/28/1926
Supreme Court of Oklahoma

COMMERCE TRUST CO.
v.
JAMES.

Syllabus

¶0 1. Principal and Agent--Proof of Agency--Acts and Declarations of Agent.
The law makes no presumption of agency and the burden of proving agency, as well as the nature and extent thereof, rests upon the party alleging it; and the acts and declarations of the agent are not of themselves sufficient to establish agency.
2. Same--Lack of Authority as Agent to Release Mortgage.

Record examined, and held, that the judgment of the trial court is supported by the evidence.

Hatchett & Ferguson, for plaintiff in error.
Mauntel, Doolin & Spellman, for defendant in error.

JARMAN, C.

¶1 This was an action by Lizzie F. James to foreclose a certain real estate mortgage executed by Alonza C. Bortheck and Ollie J. Bortheck in the principal sum of $ 1,500. The defendant, Commerce Trust Company, a corporation, by cross-petition sought to have its mortgage in the principal sum of $ 2,000 decreed to be a first lien on the mortgaged premises and to have the same foreclosed. Judgment was for the plaintiff, and the defendant trust company brings error.

¶2 On September 23, 1914, Alonza and Ollie Bortheck owned the land in question and borrowed $ 1,500 from V. B. Brown, executing their note therefor and a mortgage on the land in question to secure the same. On October 1, 1914, Brown, by indorsement, assigned the note to the plaintiff, Lizzie F. James. There was no formal assignment of the mortgage to the plaintiff by Brown. On June 28, 1915, the Borthecks sold the land to Nettie S. Young, who assumed the mortgage referred to. In December, 1921, Mrs. Young executed a mortgage to the Commerce Trust Company in the sum of $ 2,000, and in the month of February, 1922, Brown executed and caused to be placed of record a release of the Bortheck mortgage, which had been assumed by Mrs. Young.

¶3 The only question involved is whether Brown acted as the agent of the plaintiff in releasing the Bortheck mortgage. Such agency is denied by the plaintiff. On the other hand, Brown testified that he was the duly constituted and recognized agent of the plaintiff. These were the only witnesses on the question of agency, except a Mr. McKelvy, who testified with reference to a conversation the plaintiff had with him soon after this suit was filed in the lower court, wherein the witness stated:

"She said that he (Brown) had been in the habit of loaning money for her, collecting it and reloaning it without her knowledge."