Lesley v. Shock ( 1865 )

Wooiten, Justice, announced the opinion of the court.

We are all of one opinion in this case that the Chancellor erred in the construction which he gave to the agreement in writing of the 22nd of August, 1859 between the parties, Lesley and Shock, and in the efféct which he gave to the power of attorney from the former to the latter executed in pursuance of it three days afterward, on the 25th of August, 1859. We consider that the true intent and meaning of that agreement, as well as the design and object of the parties at the time it was entered into and concluded between them, was simply to strengthen, fortify and make sufficient the security of the judgment and mortgage against Fleming for the forty-five hundred dollars and interest, which Shock agreed to assign to Lesley in satisfaction and payment for the land in Kent County which Lesley had agreed to sell Shock at that price, but which the former was not willing to accept alone, as a sufficient security for that sum, with the belief entertained by him that the lands in Sussex sold by Shock to Fleming and bound by that mortgage and judgment, were not worth at that time exceeding the sum of three thousand dollars, by taking additional security in the form of a bond and mortgage from Shock to Lesley on the lands in Kent County to be conveyed by Lesley to Shock, for the first three instalments of the Fleming mortgage of five hundred dollars each, with interest, amounting to fifteen hundred dollars, which was just the difference between the value of the premises hound by it, as admitted by Lesley, and the whole amount of the mortgage, which was forty-five hundred dollars, at which latter sum it was quite apparent and certain that they both then estimated the value of the lands which Lesley by the agreement was to convey to Shock. That, we think, it is evident, was the price it was agreed by Shock should he secured to Lesley for his land, and that was the price which the latter agreed to take and expected to receive for it, the payment of it to he satisfactorily secured to him in the mode alluded to, that is to say, by the assignment of the mortgage and judgment which Shock held against Fleming for forty-five hundred dollars, to he paid in nine annual instalments of five hundred dollars each with interest, and by the bond and mortgage of Shock and wife upon the premises to be sold and conveyed to him by Lesley, to secure the payment of the first three instalments of that mortgage so to be assigned by him to Lesley, of five hundred dollars each with interest-, as the same should become payable pursuant to the terms of it. And with this view and intention, and for the convenience and accommodation of Shock, who thus assumed the obligation to pay, and made the land he bought of Lesley liable to pay, these three instalments of the mortgage and judgment against Fleming and assigned by him to Lesley, we consider and have no doubt that the power of attorney in question, was given to him by Lesley merely to enable him with his authority, and consent to call upon, collect and receive the money upon them from Fleming whenever it might suit his convenience to make any payments upon them, and when so collected and received, to pay it over to Lesley to he credited on the mortgage upon which it had thus been paid. The design and understanding of both of the parties to the agreement and the power of attorney executed and delivered under it, must have been, we are satisfied, that under the power Shock should have authority by personal and proper applications to Fleming to collect and receive moneys from him on the mortgage and judgment against him, in the name of Lesley and to duly receipt to him for the same, whenever he might be prepared to pay, or Shock might deem the occasion suitable or the prospect reasonable for collecting any from him by such applications; but not that he should have any power or authority under it, to sue out execution process upon either the judgment or mortgage to enforce the payment of either of them, or any part of them, without the consent, or against the will of Lesley to whom they had been formally and legally assigned on the record; for there is nothing in the agreement, or the power of attorney according to the view which we take of them, to warrant such a construction of them, as we are well convinced that it could not have been the design of Lesley, or the understanding of Shock, that the power conferred by the letter of attorney, should in any event he exercised in such a way as in any manner'to endanger, impair or prejudice the value or sufficiency of either the original or additional security for the price of the land about to be sold by the former to the latter, or to defeat the arrangement and purpose of the agreement itself, which might and probably would be the case, if the lands of Fleming bound by the mortgage and judgment, were to be subjected to a public sale on execution process for the portions of the debt now due and payable upon them. We will only add in conclusion, one suggestion that serves to strengthen in some degree the view we have taken of the meaning of the contract, the understanding of the parties and the purpose and object of the power of attorney in question, that there could hardly have been any occasion in this instance, for Lesley to appoint an attorney in fact to collect by execution process, a debt due him on a judgment in any of our courts, as that could have been as well and perhaps, better attended to by his attorney at law on the record marked to the case, and that it is the usual practice for the attorneys and officers of our courts, and not of attorneys in fact, to attend to the collection of judgments by execution process, when it becomes necessary to resort to that method of doing it.

The decrees of the Chancellor in both of these causes must, therefore be reversed.

And accordingly a decree was entered in this court in the first case of Lesley against Shock in the court below, perpetually restraining and enjoining Shock from issuing any writ or process upon the judgment or mortgage against" Fleming assigned to Lesley, or taking any proceedings upon them to collect any part of the debt secured by said judgment and mortgage by the sale of the said lands and tenements embraced in the said mortgage. And a decree in the other case of Shock against Lesley in the court below, that the injunction ordered and issued by the Chancellor and by him dissolved and afterward by him revived and continued in that cause, should be thereby dissolved and annulled.