Shearer v. Babson , 83 Mass. 486 ( 1861 )

Bigelow, C. J.

The verbal authority or license from the plaintiff to the mortgagor to sell the property in controversy to the defendant did not tend to control or contradict any written contract between the parties. If a question had arisen between the mortgagor and mortgagee as to their respective rights under the proviso in the mortgage, by which the mortgagor was restricted from selling or disposing of the property without the written assent of the mortgagee, paroi evidence would have been inadmissible to show a different agreement from that expressed in the written contract. But no such question arose in the present case. The defendant was not a party to the mortgage and was not bound by its stipulations. The whole controversy turned on the title to the property which the plaintiffs had replevied. It was competent for the defendant to show, in arswer to the claim of the plaintiffs under the mortgage, that he had acquired it by a sale made by their authorized agent. This agency might well be proved by paroi. It was perfectly competent for the plaintiffs, notwithstanding the stipulations in the mortgage, to vest in the mortgagor a power, by a subsequent verbal authority, to dispose of the property. They had not precluded themselves from the exercise of such a right by the restriction imposed on the mort gagor by the proviso in the mortgage. Nor could they set up the written contract to defeat a title acquired in good faith by a third person not a party to it, through an agent acting by their authority. The original restriction in writing on the authority of the mortgagee to sell the property, did not prevent the plaintiffs from subsequently enlarging his authority by paroi; and such verbal authority might well be proved to sustain a title to the property acquired by a third person under and by virtue of the acts of the agent, within the scope of the authority conferred upon him.

It was suggested at the argument that the defendant could not maintain the title which he set up under a sale from the mortgagor, because he derived it in contravention of St. 1850, c. 284; Gen. Sts. c. 161, § 62. But there is nothing in the case to show that the mortgagor sold it without informing his vendee that the same was subject to a mortgage. On the contrary, the facts stated in the exceptions would justify the inference, that the defendant was advised of the existence of the mortgage, and bought it of the mortgagor acting as the agent of the mortgagees. If such was the fact, it is clear that there was no violation of the statute. Exceptions sustained.