
    10903.
    Wooten v. Doss.
   Jenkins, P. J.

1. Wooten sued J. L., N. C., J. C., and F. C. Doss, alleging, that he bought certain land from J. L. and F. C. Doss, through their attorneys in fact, J. C. and P. C. Doss, under representations to the effect that the property was free of liens, whereas in fact there existed at the time of the purchase a mortgage lien upon the purchased property, which the plaintiff found it necessary to pay, and actually paid, in order to protect his title; that he is entitled to be subrogated to all the rights of the mortgagee under the mortgage, and he asks judgment against each of the defendants. The record as amended shows that -the mortgage referred to was executed by the said attorneys in fact under an ordinary power of attorney specifically authorizing them, as such attorneys in fact, to execute a bond for title or deed of conveyance to the land mentioned, and to sign receipts for the purchase-money paid therefor. No authority to create a lien on the property is made to appear. Defendants demurred to the suit on various grounds, and upon the demurrer being sustained, the action was dismissed. Held: It appearing that the mortgage was executed without legal authority, under the allegations of the petition it did not constitute a valid lien on the property as against the plaintiff, and therefore it was not incumbent upon the plaintiff to discharge the same, as he alleges in his petition it was necessary for him to do. The fact- that, after the filing of this suit, one of the defendants, who had owned an interest in the land, signed a cancellation of the power of attorney referred to, in which cancellation he referred to the previous grant of authority as including the right to create mortgages, would not aifect the rights of the plaintiff in this suit, or operate to thus subsequently endow the suit with a' valid cause of action which did not exist at the time it was instituted.

Decided March 18, 1920.

Complaint; from Floyd superior court — Judge Nunnally presiding. August 22, 1919.

F. W. Copeland, Maddox & Doyal, for plaintiff.

W. B. Mebane, Barry Wright, Harris & Harris, for defendant.

Judgment affirmed.

Stephens and Smith, JJ., concur.  