Solomons

This is an appeal by the plaintiff from a judgment and from an order denying her motion for a new trial. We have examined the record with reference to the points urged in support of the appeal from the order denying her motion for a new trial and have concluded that the evidence, though not satisfactory, is sufficient to support the findings, and that no error is presented thereby which is material to the relief to which we think the plaintiff is entitled, and therefore the points urged upon that appeal need not be further considered. The complaint alleges, in substance, that one Mary E. Pleasant, as the agent of the plaintiff, intrusted the defendant with a large sum of money belonging to the plaintiff; that with this money the defendant purchased a certain tract of land, described in the complaint, at sheriff's sale, in his own name, and took a certificate and, subsequently, a sheriff's deed therefor, conveying title to him; that he paid no money at the sheriff's sale other than money so intrusted to him by the plaintiff, except the sum of fifty dollars, which he advanced out of his own funds as part of the costs of the sale; that the defendant still holds the property in his…

The petition for rehearing is denied. It is not intended by the opinion herein to decide that the plaintiff, if she redeems the property, is not entitled to claim a credit for any rents which the defendant, Solomons, may have received during the time he has been in possession thereof, as an offset to the amount due upon the redemption.

I concur in the judgment. To my mind it is entirely immaterial whether all or any portion of plaintiff's money was used by Mrs. Pleasant in the payment of her indebtedness to the estate of Bell, by reason of which the foreclosure decree held by the estate as *Page 64 security for such indebtedness was transferred to Mrs. Gordon for Mrs. Pleasant in the year 1893, with the full knowledge of plaintiff. Findings of the court, fully sustained by the evidence, justify the conclusion that Mrs. Pleasant had the authority to authorize the taking by defendant at the sheriff's sale of the legal title as security for the payment of the notes of Mrs. Bell and herself, both of which were given for a valuable consideration. The court expressly found that it is not true "that any of said acts or proceedings were without the knowledge or consent of plaintiff," and the evidence shows very clearly that plaintiff had clothed Mrs. Pleasant with ostensible authority at least to do anything and everything she saw fit to do with relation to her money. The defendant apparently acted in the highest good faith throughout. Plaintiff did not by this action seek a decree authorizing redemption. She claimed…

I dissent. I cannot agree with the majority opinion in this case. The findings are not supported by the evidence, and for that reason a new trial should be had, instead of merely remanding the cause with directions to the court below to enter judgment upon the findings as therein stated. The defendant was employed by the plaintiff in October, 1892, as her attorney and counsel, to advise her and act for her in relation to all her interests in the estate of her deceased husband, Thomas Bell. The court finds that defendant had no knowledge as to the amount of money which the plaintiff had placed in the hands of Mary E. Pleasant, her colored servant, prior to the commencement of this action, and had no knowledge that any of plaintiff's money had been deposited in the account and to the credit *Page 65 of said Mary E. Pleasant with the Donohoe-Kelly Banking Company, or that said Mary E. Pleasant had in her possession money of the plaintiff for any purpose whatever, and that defendant did not know that any sum of money in the possession of Mary E. Pleasant was the property of the plaintiff, or that its possession had been intrusted to said Mary E. Pleasant by the plaintiff. The court…