
    Austin v. Thorp.
    1- Agency: power to loan and collect money. The power to collect money is not included in the power to loan, nor can it, in the absence of proof of ratification, or the like, be inferred therefrom.
    2.-Nor would the case be varied by the fact that the agent took, as security for the loan he was authorized to make, a deed of trust in which he was constituted the trustee.
    
      Appeal from Fayette Circuit Court.
    
    Thursday, December 22.
    Action upon a promissory note dated Nov. 27, 1860, payable to the order of plaintiff, in one year, with interest at ten per centum per annum, to be paid annually, at Orwell, Yermont. Defense, payment. The cause was tried by the court. The facts are stated in the record in the following language:
    “ The plaintiff, residing at Orwell, Yt., appointed one F. A. Mitchell her agent, for the purpose of lending some money for her in Fayette county; that Mitchell, in pursuance of such agency, loaned defendant the money for which the note sued upon was executed, and, at the time of loaning said money and taking of said note, took from defendant a trust deed upon certain land, to secure the payment of said note, in which trust deed Mitchell was appointed and constituted trustee. That, in 1863, after the note became due, Mitchell collected the principal and interest thereof of defendant, and gave him a receipt showing that such payment was a final discharge of the note, and, at the same time, discharged and released the trust deed.
    No evidence was offered by defendant that plaintiff ever knew of the existence of the trust deed, or the making of the same, or the release thereof, or of the giving of a receipt by Mitchell against the note. Nor was any evidence offered showing that Mitchell was authorized by plaintiff to collect the money loaned by him.”
    Judgment for defendant. Plaintiff appeals.
    
      McGlintock da Rickel for the appellant.
    
      J. Hobson and Noble, Hatch da Freese for the appellee.
   Beck, J.

The only question presented for our determination by the record-relates to the decision of the court upon the facts of the case.

In order to bind the plaintiff by the act of Mitchell, in receiving the money due upon the note, it must appear that he was empowered so to do, or that his act was after ward recognized and approved by plaintiff. It is not claimed that he was directly authorized to receive the money, but that the power will be presumed on account of his conceded agency in loaning the money. But the power to collect money cannot be inferred from the power to make a loan and receive securities therefor. See Story on Agency, § 98, and authorities cited; Dickerson & Co. v. Daniels et al., 15 Iowa, 598. Mitchell’s authority to receive payment of the note cannot be presumed from his agency to make the contract under which the money was loaned to defendant.

It is claimed that authority to loan the money - would imply authority to take the security of the deed -of trust, and that Mitchell, being himself the trustee, had the power to receive the money in discharge and satisfaction of the trust deed. It may be admitted that, in other cases of trusts, the trustee can bind the cestui que trust by the receipt of money or property which is the subject of the trust. But in this case, the trust was designed to operate as a seourity. In its effect it is not different from a mortgage, and will follow the note it was given to secure. Sargent v. Howe et al., 21 Ill. 118. It would be an extremely doubtful rule, and one subject to great abuses, to hold that a trustee, named in a deed intended to secure the payment of money, and for no other purpose, could, without authority of the creditor, receive payment thereon and discharge the lien created by the conveyance. A safer rule is to regard such an instrument simply as a security, and the trustee as possessing no power to receive payment except as it may be expressly conferred by the creditor.

The evidence failing to show that the plaintiff had empowered Mitchell to receive the money, or subsequently confirmed his act, the defense of payment was not sustained. The judgment of the circuit court is

Reversed.  