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Unformatted text preview: ven so, if he had, it would not be a defense to open up
and vacate a judgment under section 113 of the Code of Civil Procedure. The same thing is true as to
paragraph 9 of the power of attorney.
The fact that an agent failed and neglected to perform his duties and to represent the interests of his
principal is not a bar to the principal obtaining legal relief for the negligence of her agent, provided that the
application for such a relief is duly and properly made under the provisions of section 113.
It is very apparent from the face of the instrument that the whole purpose and intent of the power of attorney
was to empower and authorize the husband to look after and protect the interests of the wife and for her and
in her name to transact any and all of her business. But nowhere does it provide or authorize him to make
her liable as a surety for the payment of the preexisting debt of a third person.
Hence, it follows that the husband was not authorized or empowered to sign the note in question for and on
behalf of the wife as her act and deed, and that as to her the note is void for want of power of her husband to
The same thing is true as to the real mortgage to the bank. It was given to secure the note in question and
was not given for any other purpose. The real property described in the mortgage to the bank was and is the
property of the wife. The note being void as to her, it follows that as to her the real mortgage to the bank is
also void for want of power to execute it.
It appears that before the motion in question was filed, there were certain negotiations between the bank and
the attorney for the wife with a view of a compromise or settlement of the bank's claim against her, and that
during such negotiations, there was some evidence or admissions on the part of her attorney that she was
liable for the bank's claim. It now contends that as a result of such negotiations and admissions, the wife is
estopped to deny her liability. but it also appears that during such ne...
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- Fall '14