Kissick v. Hunter

0 m S ion by Mr. Justice Mitchell,

The sale could not be held void for want of apparent authority in the sheriff to sell under the fi. fa. because the record discloses a waiver of inquisition and extension, duly indorsed by the prothonotary on the writ, but as the waiver is by attorney the substantial question in the case is whether such a waiver is valid. On this point the case stated is not as exact as it should be. Its language is, “said defendants, by John G. McConnell, their attorney, by writing filed, .... waived the right of inquisition and extension,” etc. If we should hold the present parties to the literal wording of the case stated there would be no question at all, for it avers a waiver by the defendants in *178 the execution, and there can be no doubt that they could do that act as any other by attorney if duly authorizing him, which the language literally implies. But the real question intended to be raised is the authority of an attorney, by virtue of his retainer and without express instructions, to waive inquisition, so as to make valid a sale of land upon levy and fi. fa.

The acts which an attorney may do by virtue of his retainer are readily distinguishable into two classes, first, those in which his authority is absolute and his action binding on the client without regard to the latter’s consent in fact, and secondly, those in which he is presumed to be acting in accordance with his instructions, and which are therefore prima facie valid, but which the client may nevertheless disaffirm. Of the first class are all the steps in the regular progress of litigation, including even the giving up of technical, though substantial, advantages, such as a nonsuit: Reinholdt v. Alberti, 1 Binn. 469 . The second class is not so capable of definition, but, in general, it embraces all such acts as are customary for attorneys to do, even though collateral to the technical course of procedure, and which do not involve the sacrifice of the cause of action. It is frequently said that the implied authority of the attorney does not extend beyond judgment, but this is too strong a statement. No doubt the chief part of the authority of the retainer ordinarily ends with judgment, but not always. Thus it has been often held that the plaintiff’s attorney may collect the judgment, and a payment to him without execution, even long after judgment, is a good payment to discharge the debtor: Reinholdt v. Alberti, 1 Binn., supra; Lynch v. Com., 16 S. & R. 368; McDonald v. Todd, 1 Grant, 17 . The office of a general retainer is to authorize the attorney to take care of the interests of his client in the litigation, pending or imminent, and in so doing to take all the steps necessary, or only usual and proper, to that end. In a suit for a debt, therefore, the plaintiff’s attorney may not only recover a judgment, but may go on and collect it by execution or otherwise, but he may not accept satisfaction in anything but money. The courts have drawn the line here, because money is the practical object of the suit, and the client’s interest authorizes the obtaining of it by any of the ordinary means of litigation, but not the satisfaction or release of the judgment except for money: Whitesell v. Peck, 165 Pa. 571 .

*179 The office of a retainer for the defendant is equally broad. It is to defend the suit for the protection of his interests, and yet it has been uniformiy held that the attorney may agree to an amicable action, and may confess judgment: Coxe v. Nicholls, 2 Y. 546 ; Kimball v. Kelsey, 1 Pa. 183 ; Flanigen v. Phila. 51 Pa. 491 ; Swartz v. Morgan, 163 Pa. 195 . But tbe interests of the defendant no more end with the judgment than those of the plaintiff, if in fact they are not even more vitally involved. There is therefore no more reason why the attorney’s authority should be arbitrarily held to terminate at this point in one case than in the other. As already said, the plaintiff’s attorney may issue execution, and control it, give time to the defendant, direct the sheriff to postpone sale, etc.: Lynch v. Com., 16 S. & E. 368, and why should not the defendant’s attorney, at least in a case where execution immediately follows judgment in the suit he was retained to defend, be presumed to be authorized to continue his care over his client’s interests? We know that it is every day’s practice for lawyers to do so, and presumptions are founded on average experience of what like parties would do under like circumstances. A waiver of inquisition raises a mixed question of expediency and law. Whether the property pays enough profit to require an extent, and whether under the defendant’s circumstances it will be best for him in the end to have it extended, may be largely a question of business judgment, but the additional costs, expenses and disadvantages of management by the creditor during the extent, etc., are matters in which legal knowledge and experience are weighty factors, and in which as we know the services of lawyers are usually availed of. The matter is one which goes not to the substance of the action itself, but largely to the mode of proceeding. When therefore an attorney who has been acting for the defendant up to judgment on which execution is promptly issued, files a waiver of inquisition, it is to be presumed that he is acting under authority, and if the client desires to disavow he must do so within a reasonable time.

In the present case we are relieved from the consideration of the question of what is a reasonable time, so much discussed in Wray v. Miller, 20 Pa. 111 ; Spragg v. Shriver, 25 Pa. 284 , and the somewhat conflicting cases which have criticised, limited or followed them. The stringency of the rule announced in Spragg *180 v. Shriver has been relaxed, but the principle of the case is stíund and unchanged, that the defendant who may disaffirm his attorney’s act will be barred of his right by unreasonable delay, or by conduct which is persuasive of acquiescence and ratification. On the case stated it appears that in 1881 a judgment was obtained (for more than the present value of this property, it may be noted), followed by immediate levy, the waiver by attorney was filed, and the land sold under the fi. fa., the plaintiff in the judgment became the purchaser and went into possession, and no move to disavow or object has been made by the defendants in the execution for more than sixteen years. Under these circumstances the presumption that the attorney was duly authorized and the sale, therefore, regular in this respect, has-become conclusive, and the sale is no defect in plaintiff’s title.

Judgment reversed and record remitted with instructions to-enter judgment for the plaintiff on the case stated.