Hamilton v. Wright

(after stating the case.)—The general rule, that an appearance by attorney, whether for the plaintiff or the defendant, if there be no collusion, may be recognised by the adverse party as authentic and valid, I deem important to the safe administration of justice, and well founded in the scheme and plan of such administration in England and this country, ever since such officers were commissioned to represent litigants in the courts.

Receiving their authority from the court, they are deemed its officers. Their commissions declare them entitled to confidence, and, in a just sense, their license is an assurance, not only of their competency, but of their character and title to confidence. The direct control of the courts over them as officers, by way of summary discipline and punishment, to compel the performance of their duty, or to suspend or degrade them, *is retained and exercised as a guarantee of their fidelity. It is no denial of the rule, that, where there are special circumstances calling for its relaxation, the courts may and do relieve from its rigid application. The exception arising from. such special circumstances strengthens, as well as recognises, the rule itself.' Hence, when an appearance is entered by an attorney without authority, the inquiry, whether such attorney is of sufficient responsibility to answer for his unauthorized conduct to the party injured' thereby, is entertained. And it may be proper always

But it would be at variance with the scheme and plan upon which we universally administer the law, if a defendant could be prosecuted by a responsible attorney, in full authority to practise in our courts, and after having successfully and in good faith defended, as the case might be, through all the tribunals of justice, and to final judgment in the court of last resort, be required to submit to an order setting aside the proceedings, and be left to be again prosecuted for the same cause of action, on the mere ground, that the plaintiff’s attorney had no authority from the plaintiff to bring the action. The law which gives to attorneys their commissions, must be deemed to guaranty to defendants protection against such a result. And, at the same time, the rule should yield to equitable considerations, where they arise, and should permit the courts to give relief, when they can thereby prevent irremediable wrong to either party.

And if it be asked, why should the party for whom he appears be left to seek his remedy against the attorney? why should not the party who has been subjected to an unauthorized ^litigation pursue that remedy, rather than cast that hazard and burden on one who has done nothing to deserve it ?— the answer lies in the suggestion already made, that the law warrants a party in giving faith and confidence to one who, by law, is authorized to hold himself out as a

It may be said, that proof of the authority of the attorney to appear and prosecute should be demanded, if the party would be safe. If such demand could in all cases be insisted upon, it would be only one step toward safety. It might often be practically ineffectual. Ex parte evidence of authority might be produced, and yet, if the party might afterwards impeach it, the question would again arise, in all its force. Besides, it is not the practice to require attorneys to produce their authority, except in special cases. No doubt, there is power in the courts to order it: it has sometimes been done. (Ninety-nine Plaintiffs v. Vanderbilt, 4 Duer 632 .) When, pending a litigation, the authority of the attorney to appear is denied, and application is made in due season, the court, if probable cause appears, would, in general, protect the party applying. Still, the general rule remains, that a retainer will be presumed; and the adverse party, having no notice or ground of suspicion, may act on that presumption. (3 Merivale 12; 2 Mylne & Keen 1; 1 Ves. 196; 6 Johns. 297 ; 9 Paige 496 .) And in general, where there are no circumstances of suspicion, or facts indicating fraud, and no evidence of bad character, discrediting the appearance, the courts do not require a respectable and responsible attorney to exhibit his authority to appear. ( 6 Johns. 34 ; 5 Duer 643 .)

It is, however, suggested, that, as in ejectment, -the defendant is authorized by statute to require the attorney

In Bean v. Mather ( 1 Daly 440 ), the court do no more than exercise their general discretion to open a judgment and let a defendant in to plead, under special circumstances, in which it was equitable and proper; although it is quite true, that observations are made in the opinion of the court in derogation of the justice of the rule I have been considering, and, as I think, overlooking its proper foundation and the policy of its general maintenance.

It is, at least, doubtful, whether the code of procedure, as amended in 1862, affects the question on either side. It was settled, before the Code was adopted, that a deed of lands held in adverse possession was good against the grantor and his heirs, and against strangers, though void as against the party in possession of the land at the

Section 111 of the Code declares that an action may be maintained by a grantee of land in the name of a grantor, or his or her heirs or legal representatives, when the grant or grants are void by reason of the actual possession of a person claiming under a title adverse to that of the grantor at the time -of the delivery of the grant; and the plaintiff shall be allowed to prove the facts, to bring the case within this provision. (Code § 111.) This statute is too explicit to doubt its meeting. It says, in terms, that the grantee may maintain the suit in the name of the grantor, in such a case; not that the grantor may bring the suit, but that the grantee may, in the name of the grantor. No effect whatever can be given to this statute, if the construction is to be put upon it that such suit may be brought in the name of the grantors, where they assent to the bringing of the same; this could be done before this statute was passed. Such a construction is not to be indulged. It is a familiar rule in the construction of statutes, that they should be so construed as to have some effect given to them; for it is to be presumed, that something was intended by the lawgiver in their enactment. (Smith’s Com. on Stat. Con., p. 632, § 488.) If any effect is to be given to this statute, it is, that it authorizes the grantee, in such a case, to sue in the name of the grantor, without consulting him. There is nothing very unreasonable in this, when the grantor makes a conveyance which the statute forbids him to make, and declares void, if he

*The will of Mrs. Livingston is not before the court on this motion, but I infer, from the deed and other papers used on this motion, that these appellants held this title in trust, as exequtors, and I am not able to perceive that it can make any difference with the case, that this suit was brought in their names, without describing them as executors or trustees. The suit could be as well maintained in their individual names, and their responsibility was in no manner increased thereby; and, as they were, in fact, the grantors, and it was their act, in making this illegal conveyance, in direct violation of the statute, that created the necessity of bringing the suit in their names, I do not think they can complain. The suit did not fail, because it was not brought in their names as executors, but for the reason that the defendant Wright was proved to have held the premises under a title adverse to them for more than twenty years. In short, the defendant’s defence of .adverse possession for over twenty years, was sustained, and the case went off upon that ground. I advise the affirmance of the order appealed.

The appellants have now the order of the supreme court, that this judgment for costs be collected of Gleason, in the first instance, if collectible of him. It

(after stating the case, and the provisions of the Code.)—The question then arises, whether a grantee, under such circumstances, can maintain an action, in the name of the grantors, without their express authority ? In my opinion, no express authority from the grantors is necessary. The law gives it, moreover, by delivering a deed of the premises. While they were held in adverse possession by Wright, it may be fairly implied, that the grantors consented, that Gleason should be allowed to avail himself of every legal method by which he could obtain possession of these premises. By doing this, they evidently must have intended, that he should have possession of them, and that he should pursue the method directed by any

It is highly probable, that the grantors knew of the adverse possession, at the time when they made the conveyance to Gleason; for it was proved at the trial, that Wright had been in possession of the premises for twenty years. If they knew this, and, at the same time, intended that Gleason should not use their names to enable him to recover possession, they were guilty of great wnfairness, by giving him a deed that could be of no possible advantage to him. The appellants, certainly, had no equity against the defendant Wright. By making the conveyance, they enable Gleason, who is alleged to be irresponsible, to prosecute the action, and put the defendant to costs. Their act has occasioned this injury to him, and they should not be permitted to escape, without indemnifying him for it. The modification of the order by the general term should not be disturbed. The order should be affirmed, with costs.

Q;‘U,r affirmed.