Brown v. Kiene , 72 Iowa 342 ( 1887 )

Reed, J.

3. assign-Senefitof dutytopáy tract to the contrary: siistake. It is provided by statute (chapter 14, Acts 16 th Gen. Assem.) that “ in all assignments for the benefit of creditors, assessments or taxes levied under the laws of the state, including municipal corporations, shall be entitled to priority or preference, and be first paid in full.” Under this provision, although ■L .... . , .7. its primary object is the protection of the public revenue, it would doubtless be the duty of the assignee to protect the purchaser of the property of the estate against the taxes levied upon it before the sale. It would also be liis duty to protect the mortgagee of real estate against taxes rrpon other property of the estate, which under the law have become a lien upon the mortgaged property. Rut it clearly would be competent for him to sell the property subject to the lien of the taxes, and we think the evidence introduced upon the hearing of the motion in the circuit court shows that the quitclaim deed from Stolteben and defendant was given with the understanding that plaintiff's should take the property subject to the lien of the taxes. By that conveyance Stolteben and the assignee relinquished their right to redeem from the sale, and plaintiffs were vested with an absolute title and right to the possession of the property. They took possession of it, and received the rents and profits accruing from it during the remainder of the period allowed by the statute for making the redemption. They paid nothing directly for the conveyance, but took the property in satisfaction of the whole amount of their claim ; their bid at the sheriff’s sale being less than the amount of their judgment and the costs. It is probably true that neither of the parties knew, when the agreement was entered into, that any taxes except such as were levied upon the real estate were a charge upon it. But that can make no difference. The agreement was, generally, that plaintiffs should take it subject to the liens of the taxes. The terms of the agreement included all taxes, which were a lien upon it. It is not a case of mutual mistake, against which equity would afford relief, but is one in which the parties comprehended a fact in their agreement of the existence of which they were ignorant, and, as plaintiffs received the benefits for which they contracted, there is no reason why the agreement should not be enforced according to its terms.

2. agency-. atuíwTau-. íication. II. The agreement was entered into on plaintiff’s part by the attorney who prosecuted the foreclosure suit for them, and it is insisted that the contract was beyond the scope of his employment. It may be eou-ceded that the authority to bind plaintiffs by the agreement in question was not conferred upon the attorney by liis employment to prosecute the foreclosure suit; but the unauthorized acts of an attorney, done in the name of his client, like those of any other agent, may be ratified by the principal. As stated above, plaintiffs took and retained possession of the property after the execution of the quitclaim deed. They have accepted and retained the benefits accruing to them under the agreement. We do not decide that they might not have repudiated the agreement when they discovered the extent to which the attorney had assumed to bind them ; but in that case they would have been required to repudiate the whole contract. They clearly cannot, while retaining the beneficial results of the agreement, repudiate those portions of it which are injurious to them.

AeEIRMED.