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Transcript Appeals.



Attorney and Client-Authority to appear-Right of Defendant-Ejectment
-Grantee's Right to sue in name of Grantor.

Opinion by CLERKE, J.

law is authorized to hold himself out as a public officer clothed with authority to represent others in the Courts.

Where an attorney appears for a party, the general rule is, that a retainer will be presumed; and the adverse party, having no notice to the contrary, may act upon such presumption.

The object of Section 111 of the Code of Procedure as amended is to limit the operation of the section as previously enacted, not to create any new authority as between the grantor and grantee for the use of the name of the former by the latter to recover lands held in adverse possession.

CLERKE, J.-On the 20th of March, 1863, the Plaintiffs, Hamilton and Livingston, as trustees under the will of Margaret Livingston, deceased, conveyed a lot, consisting of about two acres, in Ulster county, to Gleason, the other Plaintiff. At the time of the conveyance, this lot was held and occupied by the defendant, Wendell Wright, claiming a title adverse to that of the grantors. After the execution and delivery of this conveyance, Gleason commenced the above-entitled action, to recover possession of this lot, and, without express authority from Hamilton and Livingston, joined with himself as Plaintiffs. On the trial, the jury, under the direction of the Court, found a verdict for the Defendant, on the ground that the premises had been for more than twenty years in the actual possession of the Defendant and his grantors, under a claim of title adverse to that of the Plaintiffs. The Plaintiffs Hamilton and Livingston, after the judgment for costs had been entered on this verdict, made a motion before the Special Term of the Supreme Court, in the Third District, that the judgment against them be vacated, on the grounds that their names had been used as Plaintiffs without authority, or, in case Gleason failed to pay the judgment, that his attorney should be compelled to do so. The motion was denied; and on appeal to the General Term, the order was substantially affirmed, although so far modified as to direct that the costs be in the first instance collected, if collectable, against the Plaintiff Gleason. The question of liability of the Plaintiff's attorneys to Hamilton and Livingston, in case the latter should have to pay the costs, was not determined, but left open. No costs were allowed to either of the parties as against the other, upon the appeal.

Opinion by CLERKE, J.

By statute it is declared that "Every grant of lands shall be absolutely void, if, at the time of the delivery thereof, such lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor" (1 R. S. 739, § 147, marginal). So that, of course, Gleason could not have maintained an action to recover possession of this lot, even if Wright could have shown adverse possession only for a year previous to the delivery of the deed, without uniting Hamilton and Livingston with him as co-Plaintiffs-the grant to him being absolutely void. Thus, even where the party holding the adverse possession had no sufficient defence, he would be successful in any action brought by the grantee alone.

Section 111 of the Code of Procedure, which declares that "Every action must be prosecuted in the name of the real party in interest," provides, notwithstanding, that "an action may be maintained by a grantee of land in the name of a grantor," &c., "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."

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 means 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 existing law to effectuate that possession. They are presumed to be cognizant of the law.

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

Opinion by WOODRUFF, J.

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 unfairness 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 enabled 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.

H. A. Nelson for Appellants.

T. R. Westbrook for Respondent.

WOODRUFF, J.-The general rule, that an appearance by attorney, whether for the Plaintiff or the Defendant, if there be no collusion, may be recognized 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, whether in England or this country, ever since such officers were commissioned to represent litigants in the Courts. Receiving their authority from the Courts, 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

Opinion by WOODRUFF, J.

such special circumstances strengthens as well as recognizes the rule itself.

Hence, when an appearance is entered by an attorney, without authority, the inquiry whether such an attorney is of sufficient responsibility to answer for his unauthorized conduct to the party injured thereby, is entertained.

And it may be proper always to inquire whether the injury to the party is irremediable, unless such appearance be set aside, and the proceedings founded thereon vacated.

In the exercise of their general equitable control over their own judgments, the Courts may and should consider whether they can relieve the party for whom an unauthorized appearance is made, without undue prejudice to the party who has in good faith relied upon such appearance, and the official character of the attorney who appears.

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 practice 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 guarantee 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 upon one who has done nothing to deserve it?

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