Mackey's Heirs v. Adair , 1881 Pa. LEXIS 221 ( 1881 )

Mr. Justice Trunkey

delivered the opinion of the court, November 21st 1881.

R. W. Mackey and others brought ejectment against the City of Allegheny and the heirs of John Irwin, for a tract of land, the whole of which was claimed by the city, and a defined part by Irwin’s heirs. At the trial, the respective attorneys for the plaintiffs, and for the heirs of Irwin, in order to compromise the question between them, agreed, that a verdict should be entered in favor of said heirs for all the land lying east of a specified line; and, if the plaintiffs should recover the land not included in said Irwin’s claim, they should release to said Irwin’s heirs all their interest in the land east of said line; and said heirs should release to the plaintiffs all their interest in 1 he land west of said line. It was intended to fix a division line between the parties, in case the plaintiffs should establish title to any part of the land adjoining Irwin’s claim, and in case of their failure, not to conclude Irwin’s heirs, as to their title, or the extent of their claim against other parties.

The court instructed the jury, that the agreement is binding upon Maclcey’s heirs, although he was not present and did not know of it, at the time, and, after the trial, may have said, he repudiated it; and this ruling constitutes the alleged error.

An attorney at law has very extensive powers and may do those things which pertain to the conducting of the suit. Unless otherwise expressly instructed by his client, he may use bis own judgment in selecting the form of action, and in shaping the issue, also, whether it shall be tried by a jury, by the court, or some other tribunal provided by law. On a mere question of boundary, when title is not involved, in open court, he may agree to its submission to the final determination of arbitrators: Evars v. Kamphaus, 9 P. F. S. 379. He may refer his client’s cause to arbitrators with an agreement, that the award shall be final; but the client may revoke the submission, and, in a proper case, he may have relict' by application to the court: Wilson v. Young, 9 Barr 101. In Pennsylvania, from an early day, arbitration has been a favorite mode of trial, and it may be implied by the relation, that the attorney has authority to make such agreements' for reference; but it does not follow, that he can make compromise agreements for his client, or settle a boundary himself.

An attorney has no authority to make a compromise, by which his client shall take laud instead of money : Huston v. Mitchell, 14 S. & R. 307. Where the attorneys of the respective parties make an agreement in the form of an award, settling an ejectment, it will not authorize judgment accordingly : Stokely v. Robinson, 10 Casey 315. In that case Woodward, J"., held that counsel have no power to compromise their client’s case, without the client’s authority or sanction.

Here, the agreement is a compromise, and provides for deeds of release, or assurance to be made by the clients. It is doubtful, whether oral authority would enable an attorney to make such a contract respecting land, though, if the client were present at its making, or afterwards recognized and acted upon it, he would be bound. It was not in the course of the conduct of the suit, nor could such agreement be anticipated by the client as likely to be made in any issue of fact, or of law, or in any known mode of trial. Authority to make it, cannot be inferred from the relation. No precedent has been cited in this state, or elsewhere, which sustains a compromise of this nature, by an attorney without his client’s authority, or subsequent ratification; and, we are of opinion, that it would be dangerous to clothe the attorney with such power over his client’s property.

Judgment reversed, and venire facias de novo awarded.