Gaines v. Acre , 1 Minor 141 ( 1823 )

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.