69 Iowa 515 | Iowa | 1886
In 1881 an action was brought in the name of this plaintiff, John Markham, against this defendant, to recover upon a policy of ñre insurance. Afterwards the action was dimissed, and the costs of the action, amounting to eighty-nine dollars and some cents, were taxed against the plaintiff, and judgment was rendered therefor. An execution was issued, and the land in question, being an improved farm of eighty acres, in Franklin county, was sold and bid in by the defendant; and, after the expiration of the time of redemption, the defendant obtained a sheriff’s deed. The action is brought to set aside that deed, and also the .judgment, as being a cloud upon the title. The plaintiff’s prayer for relief is based upon the alleged ground that he was not a party to the action in which the judgment was rendered, for the reason that he never brought the action nor authorized any one to bring it for him, and had no knowledge of it until after the property in question had been sold. The attorney who brought the action is J. H. Scales, and it is shown, beyond question, that the person who employed him was Stephen Markham, the plaintiff’s father.
About 1878 the land in question was bought of one Hrutke, and the deed was executed to John Markham,' the plaintiff. The defendant contends, however, that it was in
The question in the case, then, is, did Stephen-have authority, as the agent of the plaintiff, to cause an action to be brought upon the policy? In answer to this question we have to say that we think that the evidence fails to show that he did. It is true that the plaintiff testified, on cross-examination, as follows: “I heard he had the house insured in my name. I approved of it.” But we do not think that this shows authority to bring the action. The act of Stephen in taking insurance in' the plaintiff’s name, and paying for it himself, did not impose any burden upon the plaintiff. Why should he not approve of it. But. that is quite a. different thing from embarking in what might be expensive and fruitless litigation. Besides, there is no evidence of approval of the insurance, or knowledge of it, until after these costs were made by the commencement and dismissal of the action. It seems to us that it would be a strange doctrine to hold that Stephen was authorized to commence the action by reason of the mere fact that subsequent to the action the plaintiff approved the act of obtaining the insurance. But the case would not be different if the plaintiff had, before- the commencement of the action, approved the act of obtaining the insurance, or had expressly authorized it in advance. The power of an agent to contract in the name of his principal does not include by implication the power to bring an action upon the contract. It requires, oftentimes, the profoundest judgment to be able to determine correctly when to engage
Now, if, as we hold, the action upon the policy was brought without the plaintiff s authority, and without his knowledge or consent, the judgment against him for costs is void, and the sale and deed made under it are void. "We think that the plaintiff was entitled to a decree as prayed.
Reversed.