
    *Hamilton et al. v. Wright.
    
    
      Costs.—Maintenance.
    
    If an attorney prosecute an ejectment in 'the name of a party, without authority, and fail, the plaintiff is liable for the costs ; the defendant has a right to presume a retainer.
    A deed for land in the adverse possession of another, though an act of maintenance, is valid between the parties to it; and in such case, the grantee may maintain an ejectment in the name of his grantor.
    Appeal from the general term of the Supreme Court, in the third district, where an order denying a motion to vacate a judgment for costs, had been affirmed, with a modification.
    This was an action of ejectment instituted by Wil- ' liam S. Gleason, in the names of his grantors, Alexander Hamilton. Jr., and Maturin Livingston, in which Gleason was also joined as a plaintiff, against Wendell Wright, to recover possession of a lot containing about two acres of land, in the town of Shandaken, in Ulster county. The answer, in addition to a general denial, alleged that the defendant was the owner of the land in question.
    On the 20th Mareh 1863, the plaintiffs, Hamilton and Livingston, as trustees under the will of Margaret Livingston, deceased, conveyed the lot in question to William S. Gleason; but at the time of the conveyance the premises were held and occupied by the defendant under a title adverse to that of the grantors. Gleason, thereupon, brought this ejectment, joining his grantors as plaintiffs therein, without any express authority from them.
    On the trial of the ejectment, there was a verdict in favor of the defendant, on the ground, that the latter and his grantees had been in the actual possession of the premises for upwards of twenty years, under a claim of title adverse to that of the plaintiffs; and judgment was entered in favor of *the defendant against all the plaintiffs, for costs, which was affirmed by the general term. Hamilton and Livingston then made a motion at special term, that the judgment against them be vacated, or that, in case Gleason failed to pay the costs, the plaintiffs’ attorney should be ordered to pay the same, on the ground, that the use of. their names as plaintiffs was unauthorized, and unknown to them. This motion was denied, with costs; but on appeal to the general term, the order was modified, by directing that the judgment be, in the first instance, collected, if collectible, of W. S. Gleason, who caused the action to be brought, and that the question of the liability of plaintiffs’ attorney to Hamilton and Livingston, in case they were compelled to pay the judgment, be left open—neither of the parties to have costs, as against the other, upon such appeal. From this last order, Hamilton and Livingston appealed to this court.
    
      Nelson, for the appellants.
    
      Westbrook, for the respondent.
    
      
       Also reported in 5 Trans. App. 1.
    
   Woodeuef, J.

(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 to inquire, whether the injury to the party is irremediable, unless such appearance be set aside, and the proceedings founded thereon vacated. In exercise of their general equitable control over their own judgments, the court 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 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 public officer, clothed with power to represent others in the courts. And, besides this, the consequences of the contrary rule would often be altogether disastrous. Evidence would be lost; witnesses die; the statute of limitations bar claims; and death of parties themselves might often happen. In various ways, to set aside proceedings at the end of a protracted litigation would be to work inevitable wrong to the party who had relied upon an appearance.

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 for the ^plaintiff to produce his authority (2 R S. 306), this action should be deemed an exception to the general rule, and it be held, that the defendant’s own laches have caused his misfortune, if it after-wards appear that the plaintiff did not authorize the suit. But it is obvious, that the statute itself does not furnish complete protection. It only makes the production of apparent written authority, sustained by affidavit, presumptive evidence. And if the authority do not actually exist, the same question will arise in ejectment as in other actions: How far is the plaintiff bound by the appearance of an attorney for him ? And as respects an appearance for a defendant, the statute makes no provision. I do not think, therefore, that the omission of the defendant to demand the production of authority, where he has nothing to put him on his guard, awaken his suspicion, or to lead him to distrust the good faith of the attorney who prosecutes the action, should affect his right to insist upon his judgment, when it is not claimed, that the attorney is not of full and sufficient responsibility to answer to the plaintiff for any costs or other damage he may have sustained.

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 time of its execution.; that, being void as to the latter, the grantor could maintain the action to. recover the possession, and the grantee could not; but that a recovery in the name of the grantor inured to the benefit of his grantee. (Jackson v. Demont, 9 Johns. 55; * Livingston v. Proseus, 2 Hill 526; 9 Wend. 516; 15 Id. 164; 1 Johns. 159; Williams v. Jackson, 5 Id. 489.) When, therefore, the Code had, in § 111, provided, that every action should be brought in the name of the real party in interest, a doubt arose, whether an action to recover lands thus conveyed could be brought by any one. If brought in the name of the grantee, he could, as against the party in possession, show no title; for, as against such party, his deed was void. If brought in the name of the grantor, it might be shown that he was not the real party in interest, because, if he recover, his recovery would inure, not for his own benefit, but for the benefit of the grantee. The Code was, therefore, amended so as to exclude such a conclusion, by adding to the section the provision that “an action may be maintained, by a grantee of land, in the name of a grantor, 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 purpose was, I think, 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. If, by reason of the giving of the deed, such authority was to be implied, very well; if not, I do not think the Code conferred it.

To the suggestion that the deed was given by the appellants as executors, and such a deed did not warrant an action in the name of the appellants as individuals, it must suffice to say that the appellants have not seen fit, in their motion papers, to set out the will under ■which they convey, and the deed itself is apt to convey their own estate in the premises, and does not show that, in giving the deed, they were executing a naked power. I think, the order of the supreme court, requiring the defendant to first endeavor to collect the costs from the grantee, Gleason, was all to which the appellants were entitled. The order must be affirmed.

*Mason, J.

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 does make it, and which, in short, the statute makes it a criminal offence in the grantor to do. (2 R. S., p. 691, § 6.) It appears from the papers used on this motion, that the appellants, Hamilton and Livingston, did cónvey the premises in question in this action to William S. Gleason, when the defendant Wright was in the actual possession, claiming under a title adverse to them, and that the said Gleason brought this suit in their names, as we have already shown he lawfully might. These attorneys certainly incurred no personal responsibility in prosecuting this suit in the name of these appellants, upon the retainer of Gleason.

*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 is very questionable, I think, whether the appellants are in a position in this court, where they can insist upon what are the real merits of this appeal, to wit, that the plaintiffs* attorneys should pay these costs, because they brought this suit in the name of these appellants, without their consent, or any authority from them. The order of the supreme court, from which this appeal is taken, does not determine the question whether these attorneys shall pay these costs or not, but, after ordering that the judgment shall be collected of Gleason, in the first instance, the order expressly declares, that the question of the liability of the plaintiffs* attorneys for these costs is not determined, but left open. Now, if there shall be a failure to collect these costs of Gleason, the supreme court will undoubtedly require and order these attorneys to pay them, if it be lawful that they should do so. The appellants should have waited until the court below had passed upon this question. *They have no right to bring this appeal from this order, and ask this court, in the first instance, to make the order. I advise the affirmance of the order appealed from, with costs.

Clerke, J.

(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 existing law to effectuate that possession. They are presumed to be cognisant 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 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. 
      
      
         Hunt, C. J., concurred in this yiew.
     