53 Ark. 140 | Ark. | 1890
Assuming that the attachment sued out in the name of the appellees was not vitiated by fraud or collusion, we must decide, 1st, if it was their attachment, and if so, 2d, when was the lien fixed in their favor?
The plaintiff may bring an action either directly in person, or indirectly through an agent, but his assent, in one way or the other is essential, and unless his mind does thus enter into it, it is hot his action.
Sec. 6396, Mansf. Dig., authorizes a surety to bring an action against his principal to obtain indemnity against the debt or liability for which he is bound, but it does not authorize him to sue in the creditor’s name. The surety failed to do what he might have done, and did what he had no authority to do.
In Jones v. Moody, 59 Miss., 327, a junior attaching creditor sought by bill in chancery to vacate a senior attachment on the grounds that it was founded on no debt, and was a fraud. The attachment assailed was in favor of a party who had owned the note sued on, but assigned it as collateral; the court held that, although not a proper party to sue, he had an interest in the note, and that the attachment in his favor was not a fraud. It did not hold that he could sue for his assignee without authority. The attorneys who filed the complaint were not authorized to collect the debt for Deere, Mansur & Co., or in any way to act for them; in fact, it is not contended that there was any authority of any kind to institute the action in their favor, and it follows that it was not in fact their action. But they were notified of its institution by the attorneys who had assumed to act for them, and expressly ratified the unauthorized act. That a party may adopt a suit brought in his name without his consent, was ruled in the case of Craig v. Twomey, 14 Gray, 486, and seems to follow from the general rules applicable to the relation of principal and agent. Of this we entertain no doubt, but the difficulty arises in considering the effect of the ratification in this case.
But the rule has its exceptions, as well recognized and as generally approved as the rule itself. Without attempting to indicate to what extent the rule applies, or to specify the exceptions that are recognized, we hold that where, prior to the ratification, third persons have in good faith acquired substantial rights, or have been placed in such position in reference to the transaction that they will be prejudiced by such retroactive effect, the ratification will not be allowed to cut out or prejudice those rights. The benefit of this exception has been extended to protect the rights of intervening purchasers and lienors by attachment and otherwise. Mechem on Agency, sec. 168; Wharton on Agency, sec. 78; Wood v. McCain, 7 Ala., 800; Taylor v. Robinson, 14 Cal., 396; Johnson v. Johnson, 31 Fed. Rep., 700,
Mr. Wharton, by way of illustrating the rule and its exceptions, puts a state of case as an exception which is a counterpart of the case at bar.
The Supreme Court of Massachusetts, in the case of Baird Williams, 19 Pick., 381, which involved the same ques-ions upon the same facts, said: “If it be urged, that the •ubsequent assent of the creditors relates back to the making f the note, and makes the transaction valid ab initio, the laintiffs are met by the well known rule, that this principle f relation, equitable in itself between the parties, is not to be onstrued as overreaching mesne liens, and rights accrued to thers before the consent and ratification.”
It may be that there are certain kinds of acts, done for another without authority, so manifestly for his benefit that all parties dealing in relation to the matter would be held to know, and the law would presume, their ratification. Be that as it may, no such presumption exists as to attachments and their incident liabilities.
As the appellant had acquired its lien before the appellees had adopted this action, it follows that the lien of the latter became fixed as against the former at the time of the ratification, and is subsequent to its lien.
Without considering the question of fraudulent and collusive attachments pressed by counsel for the appellant, we conclude that the finding of the circuit court shows that its lien is prior to the lien of appellees.
The judgment will be reversed and the cause remanded, with directions to the circuit court to render judgment in accordance with the law as herein announced.
