Nelson v. McDonald

50 N.W. 893, 80 Wis. 605, 1891 Wisc. LEXIS 263

• Court: Wisconsin Supreme Court
• Decided: December 15, 1891
• Status: Published

Opinion

WiNsnow, J.

The case is hard, in that it imposes a lien upon the property of a confiding wife for which she has received nothing, but it is ruled by well-established legal principles. These principles are laid down notably in two decisions made by this court, viz., Johnston Harvester Co. v. McLean, 57 Wis. 258, and Van Etta v. Evenson, 28 Wis. 33. The substantial conclusion of these decisions is that authority may be given by parol to fill material blanks in a mortgage or other sealed instrument, as well as in negotiable paper, and that, when such authority is given, and the agent exceeds his instructions in filling the blanks, and negotiates the instrument with innocent third persons, the principal will be bound by the acts of his agent, although unauthorized.

This rule is just and salutary. It places the loss, .if there be loss, upon the person who endowed the agent with apparent authority, and not upon the innocent third person who trusted to such apparent authority and parted with money or property-in consequence of such trust. This rule is decisive of this case, for under it the mortgage must be held valid. Acknowledgment was not essential. Leinenkugel v. Kehl, 73 Wis. 238.

It is objected that there should be no personal judgment ordered against Emily McDonald, because she was a mere accommodation maker of the note. Upon this point the circuit judge well says: “By signing a joint note with her husband she clothed him withjyrima facie evidence of her intention to charge her separate estate.” She ought not to be heard now to deny that apparent intention, as against an innocent third party who has advanced money upon the faith thereof.

By the Court.— Judgment affirmed.