Action to foreclose a mortgage on defendant Hensler’s real property, given to secure the payment of three several promissory notes.

It is alleged in the complaint that the notes and mortgage were executed by defendant Hensler to Kimball Hardy in his lifetime (on July 9, 1887); that on or about February 16, 1889, Hardy'died; that his will was *299 admitted to probate on March 12, 1889; that letters testamentary were duly issued to plaintiff on March 18, 1889; and thereupon, that the plaintiff duly qualified and entered upon his duties as such executor.

By her answer, the defendant Hensler specifically denied each of the above allegations.

Weed, who was made a party defendant on the ground that he had or claimed some interest in the mortgaged property, failed to answer, and his default was duly entered.

The court found, upon all the issues, in favor of plaintiff, and decreed a sale of the mortgaged property in the usual form, ordering that a judgment be docketed against the defendant Hensler for any deficiency of the proceeds of the sale to pay the amount found due on the notes.

The defendant Hensler appeals from the judgment, and from an order denying her motion for a new trial.

When the notes and mortgage were offered in evidence, they -were objected to by defendant on the ground that they appeared to have been executed through the agency of James P. McCarthy, as attorney in fact, being signed as follows: "Mrs. L. E. Hensler, by her attorney in fact, James P. McCarthy.’’ To prove the authority of McCarthy, the plaintiff then offered the following instrument, the execution of which, in the state of New York, was properly attested: —

This instrument was objected to on the ground that it conferred no authority to make the notes, nor to mortgage defendant’s real property To obviate this objection, the plaintiff claimed that the acts of McCarthy in making the notes and executing the mortgage had been ratified by defendant on the twenty-eighth day of December, 1888, and that such ratification was shown by the following paragraph of defendant’s answer: —

The court overruled defendant’s objection, and admitted the power of attorney, notes, and mortgage as evidence; to all which the defendant excepted.

1. Appellant contends that the court erred in admitting the power of attorney, notes, and mortgage, and also contends that the finding that defendant executed the notes and mortgage is not justified by the evidence.

Conceding, without deciding, that the power of attorney was not sufficiently specific to authorize the execution of the notes and mortgage, yet defendant was not injured by the rulings of the court excepted to, if she had ratified the acts of McCarthy in executing the notes and mortgage, since such ratification was equivalent to original authority,.and justified the finding that defendant executed the notes and mortgage.

I think the paragraph of defendant’s answer above quoted, and the deposition of McCarthy to the same effect, substantially tend to prove the ratification claimed.

They show that, in the lifetime of Kimball Hardy, the defendant knew that the notes and mortgage had been executed and remained unpaid. In her answer, she alleges that “ McCarthy, as agent of, and for and on behalf of, defendant,” made a written agreement with Hardy, whereby he agreed to extend the time of payment “of the sums of money mentioned in said promissory notes and mortgage to May 1, 1890,” on certain conditions; that, as her agent and on her behalf, McCarthy had performed those conditions; and “that, by reason thereof, the said notes and mortgage became due and payable on May 1, 1890, and after the commencement of the said action.”

The alleged agreement is attached to McCarthy’s deposition, and is as follows;-—

There was no evidence tending to disprove the genuineness of this writing, or the signature of Hardy; but the testimony of McCarthy, that the interest had been paid, was disputed by the testimony of the plaintiff. But, for the purpose of the question now being considered (that of ratification), it is immaterial whether the defendant paid the interest or not; for whether she complied with the conditions upon which Hardy agreed to extend the time of payment or not, her averment, in her answer, that she authorized the procurement of the agreement for the extension of time, in the absence of evidence that she ever repudiated the execution of the notes or mortgage by her assumed agent, is,prima facie, sufficient evidence of her ratification of such execution. In Taylor v. A. M. Ass’n, 68 Ala. 229 , Brickell, C. J., said: “We do not mean that it was shown that there was assent to and confirmation of the transaction expressed in words. That is not essential; for ratification is more often implied from the acts and conduct of parties having an election to avoid or confirm, than expressed in words. And it is implied whenever the acts and conduct of the principal, having full knowledge of the facts, are inconsistent with any other supposition than that of previous authority, or an intention to abide *303 by the act, though it .was unauthorized.” (See also Mecham on Agency, secs. 146-157.)

I think the power of attorney was admissible as a circumstance tending, at least, to strengthen the other evidence of a ratification, by showing the relation between defendant and McCarthy. It showed that McCarthy was not a stranger to defendant; that he was authorized to act as her attorney, to some extent, in regard to all her real property in this state, even though he may not have been authorized to mortgage it. “ All the authorities,” says Mr. Mecham (sec. 160), “ agree that the relations of the parties have much to do in determining whether or not there has been a ratification.” Where an authorized agent transcends his authority, the liability of the principal to be held to have ratified the unauthorized acts by mere acquiescence is much greater than it would be in case an utter stranger had assumed to act as agent, without any authority for any purpose whatever; because, “ in general, where an agent is authorized to do an act, and he transcends his authority, it is the duty of the principal to repudiate the act as soon as he is fully informed of what has been thus done in his name, .... else he will be bound by the act as having ratified it by implication.” ( Ward v. Williams, 26 Ill. 447 : 79 Am. Dec. 385 .) But where an utter stranger assumes to act as agent, without any authority, for any purpose, the assumed principal is not required to repudiate so promptly, in order to repel the charge of having ratified the unauthorized acts by acquiescence, since in the latter case the assumed agent bears no ostensible relation as agent to the person for whom he assumes to act; and therefore third persons are not so liable to be deceived by his pretensions, it being their own fault if they deal with him as agent, without some apparent evidence of his authority.

And since the undisputed evidence made a prima facie case of ratification, the finding that the notes and mortgage were executed by defendant was thereby justified, —the ratification being equivalent to original authority.

*304 2. Appellant further contends that the evidence does not justify the findings that Hardy died before the commencement of this action, that his will was admitted to probate, that letters testamentary were issued to the plaintiff, or that plaintiff ever qualified to act as executor.

I think these points should be sustained. While the evidence tends to show that Hardy died before the trial of the action, it does not show when he died. .There is no evidence tending to prove that his will (if he made a will) was ever admitted to probate, or that letters testamentary were ever issued to plaintiff, or that plaintiff was in any way qualified to act as executor.

It is not claimed by counsel for respondent that there was any evidence of these alleged facts; but it is claimed that the court took judicial notice of them, inasmuch as the probate proceedings in the matter of the estate of Hardy were in the same court.

In the first place, there is no evidence of any such proceedings in any court; and in the second place, it is too clear to admit of question that the judicial knowledge of the court does not extend to the contents of its records in former actions or proceedings.

I think the judgment and order should be reversed, and the cause remanded for a new trial.

Belcher, C., and Haynes, C., concurred.

For the reasons given in the foregoing opinion, the judgment and order are reversed, and the cause remanded for a new trial.

McFarland, J., Fitzgerald, J.