Yoakum v. Tilden, 3 W. Va. 167

Yoakum v. Tilden

3 W. Va. 167 | W. Va. | 1869

BERKSHIRE, J.

The judgment complained of is founded on a motion to quash a certain writ of fieri facias., in favor *169of the plaintiff in error against the defendants in error, •which issued from the clerk’s office of the circuit court of Hardy county, at the instance of the plaintiff in error. This execution was founded on a decree rendered in said court some ten years previous, in.a suit in equity, in'which Alfred Yoakum was complainant, and his brother, the said Riley Yoakum, the sheriff of Hardy county, as administrator of their deceased father and his sureties were defendants.

It appears, from the record, that the suit in which this decree was rendered was brought by the said Alfred Yoa-kum for the purpose of settling the accounts of the administrator and recovering the amounts respectively coming to him and the said Riley Yoakum as legatees under their father’s will. It further appears that William Seymour, then a practicing attorney in said court and a resident of Hardy county, appeared and acted as counsel for both Alfred and Riley Yoakum, and procured decrees for the amounts due to each of them from their father’s estate; for the former the sum of 2,245 dollars and 29 cents with interest and costs, and for the latter the sum of 3,904 dollars and 50 cents with interest. That for the latter sum a writ of fieri facias issued from the clerk’s office of the said court, dated the 29th of September, 1858, which, on account of its being against the sheriff as such administrator and his sureties, was placed in the hands of the coroner of Hardy county for collection.

It also further appears, from the returns made on said . writ and other evidence taken in the cause, that the sum of 1,317 dollars and 1 cent was paid on the execution to the coroner, and the residue to the said Seymour, as attorney for Riley Yoakum. And the coroner made return • accordingly, that the amount so received by him, after deducting costs, &e., was in his hands ready to render, and that the residue of the execution had been paid to the said Seymour as the attorney of the plaintiff in error. And it also appears that this execution was duly levied by the coroner, before he made the return on it, on the property of the defendants in the execution or of some of them, sufficient *170or more than sufficient to satisfy the same. It further appears that the plaintiff in error at the time of, and for many years anterior to the institution of said suit was a non-resident of the State of Virginia, residing in the West, where he has continued to reside ever since, and had not from the time first named until recently been in said county; whither he came for the purpose, as he alleged, of inquiring into and collecting the money so due from his father’s estate. It moreover appears that no part of the money so received by Seymour has ever been paid over to the plaintiff in error, and that the said Seymour departed this life, perhaps in 1860, and it is now suggested (though it does not appear on the record) that his estate is insolvent. From the foregoing it will be seen that the only question presented for our consideration and judgment is, whether under the facts disclosed in the record the payments so made to Seymour by the debtors in this execution were valid and exonerated them from further liability. It was earnestly insisted in the argument here that they were made without proper authority and ought not to be sustained. That the defendants by assuming the responsibility of paying to Seymour without first ascertaining his authority to receive the money, ought to bear the loss, if any, instead of letting it fall on the plaintiff in error. And it was further insisted that the burden of proof to establish the authority of Seymour in the premises, as in the case of an agency, devolved on the defendants and not on the plaintiffs.

I do not think the authorities sustain these positions. On the contrary they not only indicate a marked distinction in many respects between the status of an ordinary agent and that of a licensed attorney at law, but very clearly establish the doctrine that, the payment of a judgment or decree to the attorney of record who obtained it, before his authority is revoked, and due notice of such revocation given jo the defendant, is valid and binding on the plaintiff, so far at least as the defendant is concerned. 2 Greenleaf, sec. 518, and cases there cited in note. 6 Johns., 295; 7 Leigh, 277; 1 Wash., 10; 1 Call, 147.

*171But if the authorities on this point were less full and conclusive-than I think they are, yet, under the peculiar circumstances of this case, considering especially the lapse of time and the death of Seymour, I should still be of opinion that the suggestion merely of the want of authority in said Seymour to collect and receive the money, would not of itself be sufficient to fix the liability of the defendants in error (who it must be admitted are equally innocent as the plaintiff in error), and that it therefore devolves on the plaintiff in error to disprove such authority before he could compel the defendants to pay the money over again. This he has wholly failed to do, and I think, therefore, that the judgment must be affirmed, with costs and damages.

The other judges concurred.

Judgment affirmed.