Savery v. Sypher/Opinion of the Court

On the issue of fact the court heard evidence and decided the case adversely to the appellant, and we think correctly. The burden of proof was imposed on Savery, who seeks to confirm the sale, to show the authority of White; for an attorney, virtue officii, has no authority to purchase property in the name of his client. If the negotiations between Savery, the appellant, and the administratrix, Mrs. Sypher, resulted in a valid agreement, binding on the administratrix, there is direct conflict in the testimony as to the terms of it. In numbver of witnesses, the case is in favor of the decree, and there is nothing in the record to enable this court to pass either upon the veracity or intelligence of the several parties. Doubtless, the court below placed great reliance on the evidence of Mrs. Price and Mr. Seeley, who were unconnected with the transaction, and wholly disinterested.

As this whole controversy turns on the payment of taxes-not involving a large amount-it seems extraordinary that the appellant did not end it, by paying the taxes, and thus secure the confirmation of a sale, in which he had such a great personal interest.

The power of Mrs. Sypher as administratrix, to make such an agreement as it is alleged she did, was denied at the bar, but it is unnecessary to discuss the point, as we find, that the purchase by White for her was unauthorized, and in violation of the real agreement under which she was willing to take back the mortgaged property.

It is argued, that the Circuit Court erred in determining the issue raised by the motion upon ex parte affidavits. Not so; for courts of equity must be able to act in a summary manner upon motions of this kind, and any other mode of investigation than the one adopted in this case, would have failed to give the speedy relief necessary under the circumstances. The practice pursued by the court was the usual and proper practice, and we see no good reasons to depart from it.

DECREE AFFIRMED.