Harshey v. Blackmarr

Dillon, J.

1. ATTOR” *Styp?^°* sumed. It will be perceived from the statement, that the case brings into consideration the general subject of the power of attorneys-at-law to bind or conclude l j j those for whom, loithout authority, they assume to appear anc¿ acThe importance of the principles involved, as well as the unsettled state of the authorities, induced us to reserve the cause from the last term until the present, that it might be examined with the *171 requisite thoroughness, and decided upon the most mature deliberation. That the existing state of the law may be understood, it is necessary to trace the history of the adjudications respecting the powers and authority of attorneys-at-law.

The ancient common law required the parties to be present and prosecute, or defend in person. It required a patent, or special authority from the crown (a dedimus potestatem de attornato faciendo), to enable parties to appear by attorney. Afterwards, by various statutes, the right to appear by attorney was recognized. But a party might still sue or defend in person, and the right to prosecute or defend by attorney was a mere privilege, intended for the convenience and benefit of suitors. See, on the subject, 3 Bl. Com., 25; Fitz. N. B., 25, 95; Gilbert C. P. C., 8; Thompson v. Blackburn, 1 N. & M., 271; 2 Keble, 199; Glanville, lib. xi, c. 1; Com. Dig. Attorney (B), 7; 1 Salk., 86; Id., 88; 6 Mod., 16; Cro. Jac., 695; 1 Stra., 693; 1 Keble, 89; see also 1 Binney, 214; Id., 469; 5 Dana, 11 ; 3 Pa., 72, 76 . In the earlier stages of the law, as the above authorities show, attorneys were appointed orally in court. Afterwards they were allowed to be appointed by warrant out of court, and the practice of the court was to require the warrant to be filed, which might however be done at any time before judgment, and the want of it in the record was aided by statute, and could not be assigned for error. This strictness has been gradually relaxed, until it is at the present time the settled rule, that although an attorney cannot, without special authority, admit service of jurisdictional process upon his client, yet it will be presumed in all collateral proceedings, and perhaps on appeal or in error, that a regular attorney-at-law who appeared for a defendant, though not served, had authority to do so. See authorities supra : also, Lagow v. Patterson (on appeal), 1 Blackf., (Ind.), 327 (1824); Hill *172 v. Ross (on appeal), 3 Dall., 331; Osborn v. The Bank of the United States (in error), 9 Wheat., 738, 829 (1824); Horner v. Doe (ejectment), 1 Inch, 130, 133; Hare and Wallace’s notes to Mills v. Duryee, 2 Am. Lead. Cases, and authorities there collected; Prince v. Griffin, 16 Iowa, 552 ; Masterton v. LeClaire, 4 Minn., 163 (1860); Shelton v. Tiffin and Perry, 6 How. U. S., 163, per McLean, J.

2.-remedy “areig?“a judgment. We may observe in passing, that it results from this doctrine, that in order to enable a party who has been rep-by an unauthorized attorney, to be relieved, he must negative the presumption of authority in the attorney; and this he cannot ordinarily do by an appeal or writ of error. He must apply for relief either by motion or by bill in equity. And many decisions hold (how correctly, on principle, we need not examine at large) that in a suit or a direct action on a judgment renagainst a party upon an unauthorized appearance by an attorney, if that judgment be & yomes¿ic ¿ne¡ the party cannot plead in defense his ignorance of the suit and the attorney’s want of authority to appear for him. St. Albans v. Bush, 4 Vt., 58 (1832) (compare with Campbell v. Bristol, 19 Wend., 101 , wherein just such a case relief was granted on motion), Lessee of Pillsbury v. Dugan's Adm’r (ejectment), 9 Ohio, 117 (1839); Holbert v. Montgomery's Adm'r, 5 Dana, 11 (1837), where the reasons based upon public policy for this vein are very forcibly stated; Field v. Gibbs, 3 Pet. C. C. 155 ; 2 Am. Lead. Cas., 4th ed., 803, and the authorities collected.

But the contraiy is now settled both in the federal and State courts with respect to foreign judgments, and consequently a judgment debtor, in an action against him on the judgment of another State, may successfully defend by showing that the attorney who' entered an appearance for him had no authority to do so. Hindman v. Mackall, 3 G. *173 Greene, 170; Latterett v. Cook, 1 Iowa, 1 ; Baltzell v. Nosler, Id., 588; Shelton v. Liffin, 6 How. U. S., 164 (1848); D'Arcey v. Ketchum et al., 11 Id., 165 (1850); Harris v. Hardeman et al., 14 Id., 334(1852); Sherrard v. Nevins et al., 2 Ind., 241 (1850); Thompson v. Emmert, 15 Ill., 415 (1854), and prior eases in that State there cited; Miller v. Gaskins, 2 Rob. (La.), 94 (1842); Gleason v. Dodd, Adm'r, 4 Metc., 333 (1842), and prior Massachus§tts cases cited; Id., 343; Aldrich v. Kinney, 4 Conn., 380 ; Starbuck v. Murray, 5 Wend., 148, 161 (1830); Wilson v. The Bank, 6 Leigh (Va.), 570 ; Norwood v. Cobb, 24 Lex., 551; Rape v. Heaton, 9 Wis., 328 ; Price v. Ward, 1 Dutch. (N. J.), 225, and prior New Jersey cases referred to; Hess v. Cole, 3 Zabr., 116.

It may be doubted whether the above distinction between foreign and domestic judgments is fully settled ; and if so, whether it rests on sound principles. Is not the gravamen the same in the one case as in the other, and does it not consist in the unauthorized act of the attorney ? We deem the rule properly settled as to foreign judgments. Why should it not equally apply to an action on a domestic judgment? The only reason that occurs to us is, that in the case of a foreign judgment it is impossible, or at least unreasonable, to require the defendant to go to the courts of the State which rendered it, and attack it directly by a bill or motion; hence, he is permitted to plead the want of authority in the attorney, defensively and collaterally. Whereas in the case of a domestic judgment it may be deemed better to force the party to assail it directly (thus giving the court an equitable control over the proceedings), by prohibiting him from resorting to the plea of a want of authority in the attorney, collaterally, as a defense to a scire facias, or direct action on the judgment. If the distinction is maintainable, it must be on some such ground.

Certain it is, however, as the authorities hereinafter cited *174 will show, that the party is entitled to relief when an unjust judgment, though a domestic one, has been rendered against him by fraud or collusion, or by the appearance of an .unauthorized attorney, if the party seeks the relief by bill or motion promptly, and has 'been guilty of no laches.

No examination of this subject would be complete or satisfactory withput a reference to the leading cases respecting it, decided in the English and American courts. It is laid down as law in an early case in Salkeld, that “ when an attorney takes upon himself to appear, the court looks no further, but proceeds as if the attorney had sufficient authority, and leaves the party to his action against him.” 1 Salk., 86.

The rule (taking the above loose report to mean what the case is generally cited to prove), has, we submit, no foundation in reason to stand upon. It obliges a person to be bound by the unauthorized act of a mere stranger. It binds him by a judgment of a court without a day in court. It relieves the other party of a duty which, in reason belongs to him, viz., to serve his process and to see, at his peril, that his adversary is in court. And it carries out this unsoundness by compelling the wrong party to look to the attorney. True reason and logic would say, if an attorney appeared for me without nay knowledge or authority, express or implied, I should not be bound by the act if never ratified or promptly disavowed, and if the adverse party, being ignorant of the want of authority, and carelessly omitting to serve process or to require the attorney to show his authority, has been damaged, he and not myself should be the one to look to the attorney.

That such a rule as the one laid down in 1 Salkeld, 86, supra), should permanently stand, without modification, as the law of enlightened tribunals, would be impossible. But, as I shalkproceed to show, the courts, instead of over *175 turning it at once, have gradually undermined it, until, if it now stands, it is tottering and ready to fall. e The rule, as stated in 1 Salkeld, 86, was essentially qualified in the King’s Bench, as will appear by an anonymous case, also reported by Salkeld, p. 88, decided in the 2d Anne, in the time of Lord Holt. As the case last cited is the leading English case and the foundation of all the discussions on this subject, we give the entire report, as found in Salkeld, at page 88. It is as follows:

“An attorney appeared and judgment was entered against his client, and he had no warrant of attorney ; and now the question was, if the court could set aside the judgment? Et per Cur. If the attorney be able and responsible, we will not set aside the judgment. The reason is, because the judgment is regular, and the plaintiff ought not to suffer, for there is no fault in him; but if the attorney be not responsible, or suspicious, we will set aside the judgment; for otherwise, the defendant has no remedy, and any one may be undone by that means.” (And see 8. G, 6 Mod., 16, where the language used is, that “ if the attorney be a beggar, or in a suspicious condition, the court will set aside the judgment.”)

It may be that the only objection made here was the want of a warrant of attorney, and not the want of authority in point of fact. But assuming that it was the latter, the right to relief is thus illogically made to depend upon the question whether the attorney was or was not responsible, and not upon the existence of his authority.

Such a doctriné could not impose upon the fine understanding and solid judgment of Lord Mansfield, and the case of Robson v. Eaton (K. B. 1785), 1 Term 62, without professedly overruling the cases in Salkeld, does so in effect by proceeding upon directly opposite principles. This will be obvious by a brief statement of the case, which was an action for money had and received. The *176 defendant pleaded that the plaintiffs, by William Hodgson, his attorney, had before sued the defendant and recovered a j udgment for the same cause of action; that the defendant, by the order of court, paid the amount of such recovery into court, and the same had been received by the plaintiff’s said attorney. This was apparently a good defense. To it the plaintiff replied that he never retained the said Hodgson to sue the1 defendant or authorized him to receive the money. Both parties were innocent of fraud. The warrant of attorney under which Hodgson acted was forged; Hodgson, ignorant of the forgery, collected the money, and in good frith paid it to the forger. And the question was, could the defendant rely upon the former recovery, or must he pay the money twice ? Now, I suppose, if on grounds of public policy, a defendant is bound by the unauthorized act of an attorney, who appears for him, the plaintiff ought, upon the same grounds, to be bound by the unauthorized act of an attorney who appears for him. The principal is the same. It was decided that the defendant must again pay the money. And the ground of the decision was, that the “ attorney who prosecuted the former suit in the plaintiff’s name, had no authority given him by the plaintiff for so doing.” It was considered that the attorney would be liable to the defendant for the damage thus occasioned to him, and would have recourse against the party who imposed upon him the false power of attorney, and received the money. It will be remarked, therefore, that the plaintiff was not considered bound by. the act an attorney he' never employed, nor was he compelled to look to that attorney, but the decision went as before stated, upon a doctrine directly the reverse of this. It is impossible to reconcile it with the prior cases in Salkeld.

While this was the state of the law in England, the case of Denton v. Noyes (the leading New York case on this *177 subject), 6 Johns., 296 (A. D., 1810), arose for decision. The court (Kent, Ch. J., delivering the judgment of the majority, and Yan Ness, J., an able dissenting opinion)' adhered to the rule as laid down in Salkeld, but added another essential qualification. After approving of the above quoted case (1 Salk., 88), and the modification there made, Kent, 'Ch. J., adds: “1 am willing to go still further, and, in every such case (i. e., where there has been an unauthorized appearance), to let the defendant into a defense of this suit.”

The points ruled by the court in that case are correctly stated in the syllabus, and are as follows :

1. Where “an attorney of this court appeared for a defendant, against whom a writ had been issued but not served, and, without authority from the defendant, confessed a j udgment which was entered up in vacation, the judgment was «held regular.. An appearance by an attorney of the court, without warrant, is good as to the court, and the defendant has an action against the. attorney. Aliter, if there be any fraud or collusion between the plaintiff’s attorney and the attorney for the defendant, or if the attorney for the defendant be not responsible, or perfectly competent to answer to his assumed client, the court will relieve against the judgment.”

2. Where there is no fraud “'the court, in order to protect the plaintiff from suffering by the act of the attorney, and at the same time'to save the defendant from injury, will let the judgment stand, but stay all proceedings,'and let in the defendant to plead, if he has any defense.”

In explanation, Kent, Ch. J., observes: “ If there had been any collusion between the plaintiff and the attorney [who assumed to act] for the defendant, it would have altered the case; but there is none shown or pretended, and my whole opinion proceeds on the ground that the plaintiffs have acted in good faith. I am disposed, there *178 fore, to prevent all possible injury to the defendant, and at the same time save the plaintiffs from harm. This can be done, only, by preserving the lien, which the plaintiffs have acquired by their judgment, and by giving the defendant an opportunity to plead, if he has any plea to make, to the merits.” 6 Johns., 301 .

And this case has since been followed in, and is the law of New Yorlr, though the common law rule, even as thus modified and shorn of its severity, has been frequently pronounced a bard one, and the majority opinion in Denton v. Noyes , criticised by subsequent judges, as will be seen by reference to the following cases: Meacham v. Dudley, 6 Wend., 514 ; Williams v. Van Valkenburg (approving Yan Ness’ dissenting opinion,'but following the majority on the principle, of stare decisis), 16 How. Pr., 144 (1858); Ellsworth v. Campbell (declaring that inability of attorney to pay, rightly had nothing to do with the question), 31 Barb, 134 (1860); Allen v. Stone (strongly dissenting from but following principal cases), 10 Barb., 547 (1851); and see American Insurance Company v. Oakley, 9 Paige, 496 (1842); compare Campbell v. Bristol, 19 Wend., 101 (1838).

It will thus be perceived that Denton v. Noyes so far recognizes the early English rule as to hold that want of authority of an attorney for the defendant to appear (the plaintiff being innocent), is not alone sufficient cause for setting aside the judgment, if the attorney who appeared and acted be responsible and able to indemnify the party. And it will also be seen, by reference to the cases above cited, that the prevailing opinion, were the question in that State res nova, is that, on principle, the responsibility or otherwise of the attorney has nothing to do with the question, and that no party, not guilty of negligence, should be bound by the act of another, which was wholly and confessedly unauthorized and unratified.

And in other States it is now the constant practice, as *179 we have before stated, to relieve parties, sometimes by motion, and sometimes in chancery, from judgments rendered against them in consequence of the totally unauthorized acts of a pragmatical attorn'ey. See, without quoting, Critchfield v. Porter (discarding early English rule, approving Robson v. Eaton, supra), 3 Ohio, 518 (1828); Shelton v. Tiffin (strong case, referred to, infra), 6 How. (U. S.), 163 (1845); Campbell v. Bristol, 19 Wend., 101 (1838); Truett v. Wainright, 4 Gilm. (Ill.), 420; De Louis v. Meek, 2 G. Greene, 55 (1849); Powell v. Spaulding, 3 Id., 443; Ridge v. Alter (relief not dependent upon the fact of actual fraud, or question of attorney’s responsibility), 14 La. Ann., 866 (1859); Marvel v. Manouvrier, Id., 3, distinguished from Walworth v. Henderson, 9 Id., 339; Hefferman v. Burt, 7 Iowa, 321 (arguendo); McKelvay v. Jones, 2 Harr. (N. J.), 345; approved, Price v. Ward, 1 Dutch., 225 (1855). These cases, and the other New Jersey cases referred to, repudiate Denton v. Noyes and the early English rule. We may also observe, in passing, that where relief is applied for, under chapter 141 of the Revision (see corresponding provisions in Stanton’s Kentucky Code, 230), the mode of procedure there provided will govern. And in other cases, as a matter of practice, it may frequently be well enough for the court, where the plaintiff is innocent, to allow the judgment to stand as security. Injury is essential to relief. Piggott v. Addicks, 3 G. Greene, 427. But when the defendant is innocent, guiltless of negligence, and has a good defense on the merits, it is certainly unjust and illogical to make his right to relief turn upon the question of the attorney’s responsibility.

And in England, in the Court of Exchequer, the rule as laid down in Salkeld has quite recently, and upon great consideration, been criticised and partially, at least, overturned. See Bayley v. Buckland, 1 Exch. (1 W., H. & G.), 1 (1847); *180 16 L. J. (N. S.), 204 Exch., where Bolfe, B., alluding to 1 Salkeld, 88, says: “ The nou-responsibili fcy, or suspiciousness, of the attorney is but a vague sort of criterion of safety to the defendant, and by the hypothesis the defendant is wholly without blame, and may, notwithstanding, be ruined. It is true that the plaintiff is equally blameless, but then the plaintiff, if the judgment be set .aside, has his remedy against the defendant'as before,' and. suffers only the delay and the possible'loss of costs." And' the court, where the appearance for the defendant is unauthorized, proceed to make a distinction between cases where process has been served, and cases where it has not. If, says the court, .the process is served, the plaintiff, innocent of any fraud or collusion, and the attorney is responsible-, the party for. whom, the attorney appeared is confined to his remedy against him. [This would overturn Denton v. Noyes, as in that case no process was served.] The reason given is; that here the plaintiff is without blame, and the defendant is guilty of negligence in not appearing, and making defense by his own attorney, if he has any defense on the merits. But, on the other hand, “if the plaintiff, without serving the defendant, except the appearance of an unauthorized attorney for the defendant, he is not wholly free from the imputation of negligence; the law requires him to give notice to the defendant by serving the writ, and he has-not done so. The defendant there is wholly free from blame, and the plaintiff not ;■ so we must set aside the judgment.”

This case, Bayley v. Buckland, supra, was very carefully considered, and the prior cases called to the attention of the court. If any part of the early rule shall stand, it should only do so with the above modification. Those inclined to pursue the subject further in the light of English adjudications may consult: Doe v. Eyton, 3 B. & Ald., 785; Hubbard v. Phillips, 13 M. & W., 702, (1845); 14 L. *181 J. (N. S.), 103, Exch.; Williams v. Smith, 1 Dowd P. C., 632; 5 Id., 305; Murdy v. Newman, 1 Exch. (Cr. M. & Ros.), 402, (1834); Odell v. Odell, 1 Irish Exch., 81; Morgan v. Thorne, 7 M. & W., 400; 3 C. & B., 745; 1 Chitty, 193, a; 2 Id., 170; Hawbidge v. De La Crouce & Francois, (follows 1 Salk., 88, but engrafts- another exception), 3 M. G. & S., (54 Eng. C. L.), 742. (1846); Stanhope v. Firman, (the C. P. recognizes 1 Salk., 88), 3 Bing. N. C., 303; S. C., 32 Eng. C. L., 145, and 5 Dowl. P. C., 357 (A. D. 1836).

dered upon, fraudulent appearance. s_sale “mentien?' In the case at bar the demurrer admits'the truth of the following facts, viz.: 1. That the present plaintiff was a non-resident of the State, and therefore not personally amenable to its jurisdiction. 2.' That he had no notice, legal or otherwise, of the Nasty foreclosure proceeding; that no service, personal or constructive, was made upon him.

3. That the plaintiff in that suit (Hasty) or his attorneys procured an answer to be filed by fraudulent representations, and by an attorney who had from the present plaintiff no right, shadow or color of authority to do so.

4. That the present plaintiff had rights which were injuriously affected by that decree.

5. It does not affirmatively appear from the petition that the plaintiff has been guilty of laches in attacking the Hasty decree, that is, it does not appear that rights on the part of third persons attached after the plaintiff had knowledge of the decree, and prior to the commencement of this suit.

6. It is admitted that there is no statement in the petition that the attorney or Hasty is insolvent or unable to respond in damages.

Assuming, these to be the facts, it is clear that if there had never been any sale under the Hasty decree, or if Hasty had become the purchaser and were still the owner of the land, the present plaintiff would, according to the *182 principles of law hereinbefore considered, and notwitstanding the recitals in the decree as to jurisdiction, be entitled. See, as to recitals, the well reasoned judgment of Marcy, J., in Starbuck v. Murray, 5 Wend., 148, 158 ; Dozer v. Richardson, 25 Geo., 90; Kemball v. Merrick, 20 Ark., 12; Hess v. Cole, 3 Zabr., 116; Shelton v. Liffin, 6 How. (U. S.), 163; Watson v. The New England Bank, 4 Metc., 343 ; Gleason v. Dodd, Id., 333.

And this brings us to the more difficult question, whether, assuming these facts, and the further fact that the demurrants in the case at bar are innocent purchasers of the land, the plaintiff is entitled to relief against them.

This obviQusly involves the further question, whether, on the above facts, the Hasty decree, as against the plaintiff, is utterly void, or only voidable. If void, the plaintiff (unless equitably barred by his negligence or otherwise, a question not before us) is entitled to relief against everybody. If voidable only, he would not be entitled to relief against bona fide purchasers for value.

It is our opinion that if the facts stated in the petition, and above assumed, are true, the decree, as to the plaintiff, was a nullity, and could not be the basis of any valid sale. We see no escape from the conclusion that it is good or bad —binds him or does not bind him; there is no half way house.

The most of the cases heretofore cited, arose between the immediate parties to the judgment or decree. In their facts, therefore, they would not be wholly applicable to the present aspect of this case, though their principles have more or less bearing upon it. In arriving at the conclusion that the decree, on the facts assumed, would be loholly * null and void, as to the present plaintiff, we have been much fortified by finding that such would be the judgment of the civil law, under such circumstances. By the Roman law, and the practice under it in modern Europe, a party to a *183 suit may appear in person or by attorney (procurator). Unlike the common law, there is no presumption that the procurator has authority to represent his client. It is-the universal practice, as I am imformed by a learned civilian, now a member of the bar of this court (Dr. Claussen), for the procurator to file his written warrant of attorney as the first step, before argument commenced. This is required by the court. And as applicable to the question now before us, the civil law acts upon the principle, that the act of two persons cannot bind or affect a third person, a stranger to the act. Inter alios acta vel judicata aliis non nocere.

And it is clear that the civil law would hold such a decree as the one obtained by Hasty, an absolute nullity as to all persons. Code VII, Lib. LX, LVI, S. P.; Dr. Linde’s Lehrbuck of German Civil Proceedings, § 116. As to Prance, see Code de Proce. Civ., titre XVIII; Pothier Cour. de Maud., § 130. And see also, Civil Law authorities cited by Van Ness, J., 6. Johns., 314, 315; Ridge v. Alter, 14 La. Ann., 866 ; Id., 3.

Our conclusion, above indicated, is fully warranted and supported by a decision of the .Supreme Court of the United States which covers every question, as to the unauthorized appearance, arising in the case at bar, so far as it is presented by the demurrer. We refer to the caso before cited of Shelton v. Tiffin, 6 How. (U. S.) 163, decided in 1848. In order that the extract which will be presently made from that decision may be understood, a brief reference to the facts of the case is necessary. ■ Thesé are quite numerous, but on the point which now concerns us were as follows: Two citizens of Virginia (Moseby and Bouldin) sued, in the Circuit Court of Louisiana, John M. Perry, a citizen of Louisiana, who was served, and also Idlburn P. Perry (his son), a citizen of Missouri, who was not served. One Crawford, a regularly admitted attorney of the *184 court, filed an answer for both Pérrys, but was not authorized to do so by L. P. Perry. His filing an answer for Lilburn was by mere inadvertence, not through intentional fraud. The plaintiffs "in that action (Moseby and Bouldin) were innocent of any fraud or collusion, and on a regular trial obtained judgment for $7,560, on which execution issued and-certain-property of Lilburn P. Perry was seized and sold to one Samuel Anderson. This property consisted of notes secured by mortgage, and of which Anderson was the maker.

After holding that where fraud is alleged and relief sought againsth judgment and a judicial sale of property, that a court of equity will sustain a bill and that it is not demurrable, on the ground that the plaintiffs have a plain and adequate remedy at law, the court, per Mr. Justice McLean, who delivered the opinion, says:

“The great question in the case,- arises out of the judicial sale of the mortgage debt to Anderson, the mortgagor, under a judgment obtained by Moseby and Bouldin against L. P. Perry and John M. Perry. Had the Circuit Court which rendered that judgment, juris.diction of the case ? The plaintiffs (Moseby and Bouldin) were. citizens of Yirginia, John M. Perry was a citizen of. Louisiania, and L. P. Perry, of Missouri. No process ■was served upon L. P. Perry, nor does it appear that he had notice of the suit until long after the proceedings .were had. But there was an appearance by counsel for the defendants, and defense was made to the action. This being done by a regularly practicing attorney, it affords prima facie evidence, at least, of an appearance in the suit by both the defendants.” The court then refer to the evidence of Crawford, the attorney, to the effect, that the answer for L. P. Perry was filed without authority from him, and in respect thereto remark: “ This evidence does not contradict the record, but explains it. The appearance was the act of the counsel, and not the act of the *185 court. Had the entry been, that L. P. Perry came personally into court and waived process, it could not have been controverted. But the appearance by counsel, who had no authority to waive process, or to defend the suit for L. P. Perry, may be explained. An appearance by counsel under such circumstances, to the prejudice of a party, subject the counsel to damages; but this would not sufficiently protect the rights of the defendant. He is not bound BY the proceedings, and there is no other principle which can afford him adequate protection. The judgment, therefore, against L. P. Perry -must be considered a nullity, and consequently did not authorize the seizure and sale of his property.”

An execution sale under a fraudulent judgment is void, if the purchaser had no knowledge of the fraud. But in this case, L. P. Perry was not amenable to the jurisdiction of the court, and did no act to authorize the judgment. He cannot, therefore, be affected by it, or by any proceedings under it. In this view it is unnecessary to consider the objections to the procedure under the execution. * * The judgment being void' for want of jurisdiction in the court, no right passed to Samuel Anderson under the marshal’s sale. 6 How. (U. S.) 163, 186, 187.

In reaching this conclusion, we have not overlooked the consideration that the records of a court should have a large degree of sanctity attached to them. Parties who have been negligent, should not, especially if intervening rights have grown up, be permitted to impeach them-by extraneous evidence. And in all cases, the right should be clear, the injury palpable, and the evidence convincing.. The reason for this is manifest in the consideration, that after the lapse of time it is very easy, for a- party to say, and under our law swear, that an attorney who is perhaps dead had no authority to represent him, and correspondingly difficult for' the other party to show the contrary.

*186 The true inference from this is, not to hold the ■unauthorized judgment valid, but to require the party assailing it to mate a clear case, and to hold that a mixed case will not do. _

Had Parnell or his grantees examined the record in the Hasty forclosure, while they would have the right to rely upon the presumption of regularity, they would have discovered that the plaintiffs’ mortgage was first recorded, and therefore prima facie the first lien; that no service of process was made or even attempted upon the plaintiff; and that the answer which confessed material facts was in the handwriting of plaintiffs’ attorney.

If they had purchased the Hasty decree or judgment before sale on execution under it, it would have been a mere chose in action, and they would have stood in Hasty’s shoes respecting it. Burtis v. Cook and Sargent, 16 Iowa, 194 ; Gett & Brewster v. Lucas, 17 Iowa, 503 .

It cannot validate a judgment well for want of jurisdiction, that there has been a sale under it. We wish to emphasize another thought which is this, that the conclusion reached does not excuse, but in view of public policy, requires a party who has been represented by an unauthorized attorney, to disavow and disaffirm his action promptly upon receiving knowledge thereof. If he does not thus speak when he ought to, the court will not hear him when he wants to, especially if his delay has been prejudicial to the rights of third parties. We simply recognize the right of a party to be relieved against an unauthorized judgment, in a strong case like the present, also recognizing the fact that his own negligence or unreasonable delay, and the like, may defeat the right. In applying these principles the court should endeavor to do justice in the particular case, and when they effect this, they will not be far from the right.

We also observe that the doctrine of this opinion applies *187 only to cases where there is a total want of authority, on the part of the attorney, and not to eases where an attorney regularly employed has exceeded, his authority.

n. conveysCTiption? attorney. II. The description of the premises in the plaintiffs’ mortgage is as follows: “We, J. L. Blaclcmarr and Belinda, his wife, sell and convey unto John Harshey, &c., the following-described premises in'Marsball county, Iowa, to-wit: Eighty acres of land, bought of Rev. James M. Holland, lying two miles southward from Marshalltown, in Marshall county, Iowa, and so soon as the numbers of the above land are obtained we agree that they shall be inserted in this deed, as our voluntary act, and the recorder of Marshall county is instructed to do the same for us.” “ The west half of the southwest quarter, section 10, in township 83, range 18 west. This description inserted by me as above instructed.

“THOMAS MERCER,

“ Recorder of Marshall Go., Iowa.”

This mortgage is duly acknowledged and recorded.

It is made a ground in the demurrer that this description is insufficient; that the mortgage was executed in blank, as to the description, and, therefore, the instrument is not operative in law. The mortgagors do not make this objection. The instrument might be sufficient as against a subsequent incumbrancer, without reference to the addition made by the recorder; but however this might be we are clearly of opinion that they cannot object that the recorder executed the written authority conferred upon him. This authority was equivalent to a power of attorney to the recorder to do as ho did.

*188

7‘oloSSb-tender.

*187 III. It is unnecessary to consider at length the question in relation to the tax sales and certificates. If the averments of the petition are true, and the demurrer admits that they are, the plaintiff is not barred thereby. Seeking to *188 f°recl°se (as l1® alleges) the first mortgage, he is not bound to tender redemption of a second mortgage as claimed by the demurrants. Anson v. Anson, ante.

We only add- that the court, when it sustained the demurrer of part of the defendants, also erred in dismissing the petition as to Blackmarr and the others who made no defense. Judgment reversed and cause remanded, and appellees have leave to answer in the District Court.

Reversed and remanded.