
    Nellie A. Figley v. J. F. Bradshaw et al., appellees, Impleaded with Goodrich Bros. Banking Company, appellant.
    [Filed October 5, 1892.]
    1. Mortgages: Principal and Agent. A person who received an application through an agent for a loan upon real estate sent a draft for the amount of the loan, payable to the mortgagor, to his agent, one C. at S., and instructed him to have certain liens on the property satisfied. The agent procured the indorsement of the mortgagor on the draft and retained the same on the pretense of satisfying the liens, but instead of doing so absconded with the money without paying the claims. Meld, That the proof failed to show a delivery of the draft to the mortgagor, and did show that C. was intrusted with the same as agent of the lender.
    •2. -: Failure of Consideration: Cancellation. The loan having failed, a mortgage for the commission in procuring the same was properly canceled.
    •3. -: -: Bona Fide Purchaser: Judgment Against Assignor. The note and mortgage being void and having been transferred to a Iona fide purchaser, judgment was properly rendered against the party making the assignment.
    Appeal from the district court for Nuckolls county. -Heard below before Morris, J.
    
      Letton & Hinshaw, for appellant.
    
      S. A. Searle, oontra.
    
   Maxwell, Ch. J.

This action was brought by the plaintiff against Bradshaw and wife to foreclose a certain mortgage. The other defendants were joined because they claimed an interest in the mortgaged premises.

The controversy in this court relates to a certain mortgage made by Bradshaw and wife upon the property described in the petition for the sum of $700 in favor of L. W. Goodrich. The loan was effected through one Samuel Carto at Superior. It appears from the evidence that there were certain liens upon the property then due and the loan was effected to pay off such liens. A draft for $705 was sent by Mr. Goodrich to Carto. This draft was payable to Bradshaw. This, at Carto’s request, he indorsed, bufe the possession was retained by Carto, who informed Bradshaw that he was to satisfy the liens out of the same. Carto thereupon collected the draft and left the country without paying the liens. Goodrich transferred the note and mortgage to Markham before due and he claims to be an innocent purchaser.

The court below made special findings; in effect, that Carto was the agent of Goodrich and that there had been no delivery of the draft. It also found that a mortgage given to Goodrich Bros, for commission was without consideration and that Markham was a bona fide purchaser,, and rendered judgment as follows:

It is therefore considered and adjudged by the court unless there shall be paid to the clerk of this court within twenty days from the entry of this decree, for the use and benefit of the said defendant, D. G. Markham, the said sum of $803.10, that the defendants’ (Bradshaw) equity of redemption be foreclosed and said mortgaged property be sold, and an order of sale be issued to the sheriff of said Nuckolls county, Nebraska, commanding him to sell said lots 11 and 12, in block 18, in the city of Superior, Nebraska, and bring the proceeds thereof into court, to be applied in satisfaction of the amount so found due, subject to the liens of Nellie A. Figley and the Beatrice Savings Bank Company.

It is also considered and adjudged by the court that as. to the notes and mortgage of Goodrich Bros. Banking Company, the same are decreed void and of no effect, being without consideration, and that the mortgage be satisfied of record and canceled, and that the defendants Bradshaw have and recover of Goodrich Bros. Banking Company the sum of $803.10, and that the costs of these proceedings be taxed to Goodrich Bros. Banking Company.”

The judgment is sustained by the clear weight of evidence. Even Mr. Goodrich’s own testimony shows that the draft was sent to Carto to clear off the liens on the property, and this, agent seems to have betrayed his trust and failed to discharge the duty he had assumed and the employer must bear the loss. We do not care to comment on the testimony at length. The judgment of the court below is right and is

Affirmed.

The other judges concur.  