#### R. S. CHRISTIAN, trustee, and J. D. and R. S. CHRISTIAN v. R. Y. YARBOROUGH and J. R. WILLIAMS, administrators of John W. Erwin; J. W. PEARSALL and wife ANNIE E. PEARSALL, RUFFIN ERWIN, JAMES ERWIN and S. A. JONES.

(Decided February 28, 1899).

Agent and Principal — Attorney and Glieni — Cancellation 'of Mortgage — Ratification—Judgment, non-obstante veredicto.

1. An attorney is the agent of his client. Where he does an act exceeding his authority, ratification .by the client will render it valid and binding.

2. Ratification of the unauthorized act of the agent will be presumed, where the principal, after being informed, retains the benefit of the transaction in whole or in part. He may not share the benefit of a contract without bearing its burdens, and there is no distinction as to the Question of ratification, between the action of an attorney at law and the action of an attorney in fact.

3. While an attorney at law has no power to cancel or discharge a deed of mortgage, without authority conferred by his client, yet where such attorney informs his client that he is unable to complete an arrangement agreed upon with the debtor for obtaining a new mortgage and the sale of a stock of goods, upon which the creditor has a lien, unless a cancellation of an old mortgage was made, and that he would cancel the old mortgage by a day named, unless directed not to do so; the attorney receiving no such direction, cancelled the old mortgage, and forwarded to his client the new mortgage and power of sale, and the new mortgage was returned without objection to be registered: Held, to be a ratification by the client of the act of cancellation of the old mortgage.

4. A motion for judgment, non ohstante veredicto, can only be entertained at the instance of a plaintiff.

Civil ActioN, to vacate tbe cancellation entered upon *73tbe margin of registration of a mortgage from John W. Erwin, deceased, to the plaintiffs, on the ground that it was the unauthorized act of their attorney, tried before Bryan, J., at April Term, 1898, of the Superior Court of Franklin County.

The defendants — administrators and heirs-at-law of the intestate, Erwin — claim that the act of plaintiffs’ attorney, if not authorized, was at least ratified, by his clients.

The circumstances detailed in evidence upon which both sides claimed the verdict of the jury upon the issue — 1. Has the mortgage from J. W. Erwin to J. D. and R. S. Christian, dated March 5, 1892, been duly released and discharged? — are fully stated in the opinion.

His Honor in structed the jury to find the first issue, “No.” Defendants excepted. The jury found accordingly.

The defendants then moved for judgment non obstante veredicto. Overruled. Exception.

Judgment in favor of plaintiffs.

Appeal by defendants.

Mr. O. M. GooJce, for defendants (appellants).

Messrs. Shepherd & Busbee and F. S. Spruill, for plaintiffs.

MoNxgomeby, J.

This action was brought to have declared null and void a release and satisfaction of the provisions of a certain mortgage from J. W. Erwin, now deceased, to J. D. and R. S. Christian, entered on the margin of the registry in Franklin County, North Carolina. John W. Erwin, the intest.ate of the defendants Yarborough and 'Whee-lass, in his lifetime, and the plaintiffs before they were incorporated, had between them numerous contracts and agreements concerning the indebtedness of the intestate to *74them. Erwin, on the first day of March, 1892, executed a deed of trust to R. S. Christian upon all the goods, wares and merchandise in the store of the intestate to secure a debt due to J. D. and R. S. Christian. On the 5th of March following he executed a deed of mortgage upon his interest in a certain tract of land in Franklin County to the same persons to secure to them the amount of $700.50, which they had paid for the intestate to Cohen, Sons & Co., and which amount had been secured by a deed of mortgage to the Cohens upon the same lands. The intestate in his lifetime was put in charge of the stock of goods conveyed in the deed of trust of March 1st, 1892, as the agent of the trustee for the sale and disposition of the stock of goods, the same having been replenished from time to time. It further appeared from the testimony of T. B. Wilder that in March, 1894, Christian employed him as his attorney-at-law in regard to the debt against Erwin; that he said the matter had been standing about two years and he wanted the trusteeship closed up; that Erwin would come to see him, Wilder, and sign certain papers agreed upon; that it was not understod between him and Christian that the mortgage on the land especially was to be released; that Erwin did come to see Wilder on April 4th following and refused to execute the papers prepared for him until the mortgage on the land should be cancelled; that Wilder wrote to the plaintiffs at Richmond on that day, informing them of Erwin’s demand for the cancellation of the mortgage as a condition precedent to his execution of the papers prepared for him, and requested an answer by the 9th inst., as on that day Erwin would return for the purpose of completing the business. The letter to plaintiffs was sent by special delivery and was received by them in time to have been answered before the 9th; that no answer having been received, Wilder re*75leased and cancelled tbe mortgage on tbe registry on tbe lOtb. Tbat on tbe last-named day Wilder sent to tbe plaintiffs a new mortgage and tbe assent of Erwin to tbe conveyance by R. S. Christian, tbe trustee to tbe plaintiffs, of tbe property conveyed in tbe deed of trust of tbe 1st of March, 1892. Tbat those papers, together with a bill of sale from B. S. Christian, trustee, to tbe plaintiffs, for tbe goods and merchandise conveyed in tbe deed of trust of March 1st, 1892, were returned to Wilder for registration in Eranldin County, as they were satisfactory, and tbat be bad them all registered in Franklin County. Tbat at tbe time be, Wilder, sent these papers to tbe plaintiffs in Richmond be informed them by letter tbat be bad cancelled tbe mortgage upon tbe land, and they answered not a word until after Erwin’s death.

There was evidence for tbe plaintiff offered, but none contradictory of Wilder’s evidence as set out above. Upon tbe evidence tbe Court instructed tbe jury to find tbe issue, “Has tbe mortgage from J. W. Erwin to J. D. and B. S. Christian, dated March 5th, 1892, been duly released and discharged?” in tbe negative.

We think there was error in tbat instruction. It is certainly true tbat an attorney at law has no power to. cancel or discharge a deed of mortgage without tbe authority is conferred to do so by bis client; and in this case, if nothing-else appeared but tbe simple action of Mr. Wilder in can-celling tbe mortgage, done as it was, without tbe authority of tbe plaintiffs, tbe act would be of no force, and would not, therefore, bind tbe plaintiffs. But from tbe evidence in tbe case there seems to be a ratification, in law, of tbe act of Mr. Wilder. Before be cancelled tbe deed it is admitted by tbe plaintiffs themselves tbat they bad received from him tbe knowledge of bis purpose to do so, and although they bad *76time to instruct him tp the contrary, they were silent. But further than this, when the new mortgage from the intestate and his assent to the sale and conveyance of the personal property, conveyed in the deed of assignment of March 1st, 1892, by R. S. Christian, the trustee, to the plaintiffs, were sent by Mr. Wilder to the plaintiffs, they were informed of the cancellation of the mortgage on the land. The new mortgage and the assent by the intestate to the sale of the personal property as above mentioned were in the eye of the law substantial benefits accruing to the plaintiffs in the transaction, and they can not be allowed to accept that part of the transaction which is for their benefit, and refuse to allow the intestate that which was favorable to him. Their conduct was a clear ratification of the action of Mr. Wilder, although he was not authorized to cancel the mortgage in the beginning. Where an agent goes beyond his authority his principal must ratify the whole transaction or repudiate the whole. He will not be allowed to ratify that portion of the contract which is for his benefit and repudiate the other because it is against his interest. “A person can not take the benefit of it (contract) without bearing its burdens. The contract must be performed in its integrity.” Ewell’s Evan’s Agency (Ed. 1879), p. 95.

The principal can not of his own mere authority ratify a transaction in part and repudiate as to the rest. He must either adopt the whole or none. Story on Agency, section 250. The same principle is announced-in Rudasill v. Falls, 92 N. C., 222. And there is no distinction as to the question of ratification between the action of an attorney-at-law and the action of an attorney in fact. They are both agencies and the same rule applies as to ratification. Am. & Eng. Enc. of Law, Vol. 3, p. 374 (2nd Ed.), and cases there cited. In Tooker v. Sloane, 30 N. J. Eq., 394, it was held that a *77release by an. attorney in fact of a bolder of a mortgage, tbe latter having accepted tbe consideration from tbe former witb knowledge of tbe release, was beld binding on tbe principal^ tbongb tbe attorney exceeded bis authority.

Tbe new mortgage and tbe assent of tbe intestate to tbe sale of tbe goods by tbe trustee, was tbe consideration of tbe cancellation of tbe old mortgage, and tbe plaintiffs accepted and received it. Tbis case bears no resemblance to tbat of Woodcock v. Merrimon, 122 N. C., 731. There tbe trustee undertook to release and discharge on tbe registry from tbe operation of a deed of trust a portion of tbe land conveyed in tbe deed; and it was said tbat 1271 of Tbe Code only empowers a trustee to acknowledge satisfaction of tbe provisions of such trusts. It was never contemplated, as was said in Brown v. Davis, 109 N. C., 23, tbat tbe trustee could by tbis means release from an unsatisfied trust specified parts of the land. And it was further said in tbat case, “We do not mean to say, however, tbat tbe creditor might not be estopped under certain circumstances from enforcing bis claim against tbat part of tbe land undertaken to be released by tbe trustee if done witb tbe creditor’s consent and authority, properly shown.”

Tbe motion made in tbe present case by tbe defendants for judgment non obstante veredicto was properly overruled. “A judgment non obstante veredicto is granted in those cases where a plea or defence confesses a cause of action and tbe matter relied upon in avoidance is insufficient.” Ward v. Phillips, 89 N. C., 215; Stephen on Pleading,, p. 97.

There was error, for which there must be a new trial.