Page:Federal Reporter, 1st Series, Volume 7.djvu/853

 NAT. SHOE & LEATHEB BANK 0? AUBURN V. SMAIiTi. 841 �sequent ereditors; that Hartwell was the agent of the mort- gagors in procuring the mortgage from the firm, and that whatever fraud was contemplated by the firm, and whatever was done by them in accomplishing it, must be held commit- ted by their agent in obtaining the mortgage, and is as fatal to their rights as if they themselves had personally partioi- pated in the transaction, The evidence, however, fails to eatablish any sueh agency or authority of Hartwell thus to act in behalf of Mb parents. It doea not appear that he had authority in their behalf to procui*e the mortgage and enter into any agreement or understanding that they would with- hold the mortgage from record. When he applied to May for the loan of $600, he told him he- would procure the indorsement of his parents, and would secure them for this and any other liabilities they might incur for the firm,' and he afterwards so informed his father. But May, and not Hartwell Wagg, was the agent of the mortgagees to recoive delivery of the mortgage, and he was expressly instructed by Joshua M. Wagg "to make it all right so as to secure them," and was further directed "to take the mortgage and keep it for him;" and May says the mortgage was executed and delivered to him by the mortgagors, nothing being said about its being kept from registry, The mortgage, therefore, was a complete and perfect instrument, which the mortgagees could record at any moment that they deemed it for their interest so to do. Such are the averments in the answers,. and they are fully sustained by the weight of the evidence. Some circumstances are relied upon as in conflict with th& answers, but they are of little moment, and should have na effect to control the sworn statements of the mortgageea found in their answers to the bill, and their testimony as witnesses. The charge, therefore, in the bill, that there was an agreement that the mortgage should be withheld from record and kept secret, and thereby a fraudulent credit obtained for the mortgagors, is not sustained by the testi- mony, and the case is simply one where a party has negli- gently failed to record his mortgage until his debtors had ��� �