Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 247
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1875.] TAYLOR v. HUDGINS. 247
Opinion of the Court.
tendant circumstances, was ample evidence to prove that defendant
had authorized his agent to execute that or any other
note in connection with the creation of a mortgage-lien or
hypothecation of any or all his lands in Texas, and in this
opinion we concur.
Appellant contends, however, that as the evidence shows
that the consideration for the execution and delivery to appellee
of the note and trust deed was loan of money; that the
judgment is therefore erroneous and should be reversed.
Why this should be so is not shown. A mortgage is defined
as "the conveyance of an estate or property by way of pledge
"for the security of a debt, to become void on payment of it."
(4 Kent's Commentaries, 136.) A lien is "a hold or claim
"which one person has upon the property of another as a
" security for some debt or charge." (2 Bouvier, Title Lien.)
Hypothecation is " a right which a creditor has over a thing
"belonging to another, and which consists in a power to cause
"it to be sold in order to be paid his claim out of the proceeds."
(1 Bouvier, Title Hypothecation.) The power of
attorney from appellant to Finch is silent with reference to
existing debts or obligations due or about to become due to
any person from appellant, and which he desired to secure by
mortgage or otherwise; he has not stated, in evidence or in
his answer, that such was the fact; his power to Finch can be
readily and truly construed to refer to the creation of debts;
no power is given to his agent to create them by the purchase
of property, or in any other mode, and in the absence of any
expression in the power of attorney showing that it was given
for the purpose of giving security for existing liabilities, we
can only conclude it was intended to enable the agent to obtain
a loan of money for his, or his principal's use or benefit. We are
therefore of opinion that there was no error in receiving the
trust deed as evidence.
Upon appellee entering a remittituwr for the excess of eight
dollars and eighteen cents the judgment is affirmed.
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/255/: accessed August 16, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .