¶2I think that the judgment of the trial court should be affirmed for the following reasons, if not upon several other grounds not necessary to discuss : The plaintiff admitted that her husband had the entire management and control of the plantation, with full authority to collect the rent cotton, and to sell the same, and to use the money to pay off an existing mortgage on the said plantation. It will thus be noted that she armed her agent with full authority to rent the place and collect the rents, and to dispose of said rents for a limited or specific purpose. Therefore, if her said agent misappropriated said rent, he merely exceeded his authority, as he had the indicia of authority or ownership; and, if the said rents fell into the hands of an innocent purchaser, the wife who armed him with said indicia of authority should suffer. It is true the defendants may have known that the cotton came off of the wife’s lands, but they had every reason to believe that the plaintiff had given her husband the authority to do what he did, or ivas ratifying his act each year; and, unless these defendants knew that the said husband was breaching the trust reposed in him by using the rent instead of paying off the mortgage on the land, they would not be liable in this action. — First Nat. Banh v. Nelson, 106 Ala. 535, 18 South. 154. These transactions had been going on for eight years, and the plaintiff knew, or ought to have known, that the husband was using the rent and was not paying off the mortgage debt, as she claims to have instructed him to do, yet no word was said or protest made against his using the rent until after he had become a bankrupt for the second time. The trial court could well infer that the plaintiff knew, for years and years, that her *471agent was disposing of the rent and was not paying off the mortgage on the land, and that she did not first-learn of this until just before tbe suit was brought. Tbe plaintiff repeatedly renewed and extended tbe mortgage indebtedness during tbe period covered by these transactions, and each time that sbe gave a new mortgage on tbe land sbe knew that tbe rent bad not been used to pay off or reduce tbe mortgage debt, and was put upon notice that her said agent was disposing of tbe rent for other purposes. After permitting him to do this for years and years, sbe is now estopped from claiming that a fraud and deception bad been practiced upon her by her said husband, and cannot recover tbe rent from these defendants who have not been shown to be participants in tbe fraud claimed to have been practiced by tbe husband upon bis wife, this plaintiff.
¶3This case was tried without a jury, and tbe evidence was ore tenns, and we cannot say that tbe conclusion of tbe trial court was wrong. Justice Somerville concurs in this opinion and conclusion. Justice Mayfield also thinks tbe case should be affirmed, for tbe reason set out in bis dissenting opinion.
¶4Tbe result is tbe granting of tbe rehearing, tbe vacation of tbe judgment of reversal, and tbe affirmance of the case.
¶5Affirmed.