
    Gaines against Acre.
    
      December, 1823.
    
    G., as agent of B., sells a land certificate to him self: B. brings attorney recieves it; he confirms the sale.
    
      ACRE brought an action of detinue against Gaines in the Superior Court of Washington County, for a land certificate, and recovered a verdict and judgment. By the of Exceptions it appears that in 1799, Narcissis Brontin appointed Gaines his agent to sell the land for which the certificate issued : that it issued to Brontin in the year. 1805. On the day on which it was issued, Gaines, as agent of Bron-tin, transferred it to himself at the price of one hundred and fifty dollars: that the land was not then worth more: that a witness had seen a letter in possession of Gaines, purporting to be from Brontin, authorizing him to sell the land for one hundred and fifty dollars : Gaines had offered it to witness at that price, and witness declined purchasing. It was further proved that an attorney, employed by Brontin, brought an action in his behalf against Gaines for that price ; ■and that at the return term of the Writ, being informed that Gaines was about to plead a tender, the attorney in the action received the money of Gaiñes, and paid it over to Wilson Carman ; attorney in fact for Brontin. The Court below charged that the transfer of the certificate by the agent to himself was void, and not voidable merely. It was further proved that the plaintiff, Acre, in June, 1817, purchased the land of Brontin, the certificate being in the possession of Gaines. The Court charged the Jury, that if Gaines obtained possession of the certificate as agent of Brontin, his possession was not adverse to Brontin ; and that Acre's purchase was valid, notwithstanding the certificate was in possession of Gaines. It was not proved that Gaines had ever had actual possession of the land.
    Upon a writ of Error to this Court the matter of the bill of Exceptions was by Gaines assigned as Error.
   Chief Justice Clap

delivered the opinion of the Court.

Although we are unanimously of opinion that it was in ■the power of Brontin to confirm the transfer by Gaines to himself, we do not all concur in considering the question throughout in the same manner; my own opinion is, that the act was not void, but merely voidable.

Brontin had empowered Gaines to transfer the certificate: whatever irregularity may have occurred in the execution of his authority, the transfer was legal on its face, subject to be set aside or confirmed at the election of Brontin.

I think that this position is sustained by the case cited from 4 Munford, 333. One of several joint-executors made a transfer in which the others did not unite ; the Court in effect determined that the act was not void, but voidable mmely; and that a vendor, by recovering judgment for, and recteiving the purchase money, ratifies the sale.

From the nature of the powers and the duty of an attorney at law, the acts of Kennedy, as attorney for Brontin, in the suit against Games, ought to be considered as the acts of Brontin. It has been urged that it does not appear that Brontin had been apprized that Gaines had transferred to himself; the contrary does not appear; we must take the facts as they are stated on the Record to have been proved. Carmín, Brontin’s attorney in fact, consulted with Kennedy and Baldwin, (his attornies in the suit afterwards brought,) and received the money paid by Gaines. To require the subsequent assent of the principal to the act of his agent, would deny to the principal the power of contracting by an agent.

If it were necessary for us now to enquire whether the evidence, as stated, raises a presumption of fraud in the transfer, we would say that it repelled such presumption : that it appears that the price which Broniin demanded, and for which he instructed Gaines to- sell, was paid to Carman as his attorney in fact: that there is no evidence that Bron-tin was dissatisfied with the price, or that there was misrepresentation, or concealment on the part of Gaines. The opinion of the Court on the principle of the case referred to, (4 Munf. 333,) is, that Broniin, by suing for and receiving the purchase money, confirmed the sale ; and that in this respect the charge in the Court below was erroneous.

Crawford and Hitchcock, for the.plaintiff in Error.

Acre, for defendant in Error.

Let the judgment be reversed and the cause be remanded.

On the I8th day of December, 1823, after delivering the opinion in this case, Judge Clay resigned the office of Judge of the Fifth Judicial Circuit; and Judge Lipscomb was thereupon, by the Court, appointed Chief Justice.  