Fritchey v. Bosley

Alvey, J., delivered the opinion of the Court. The judgment was recovered by T. L. Eritchey against Joshua Bosley and Joshua N. Bosley, on the 3rd of Octo ⁹⁶ her, 1873, for $6000, and which judgment was assigned, on the 31st of December, 1873, to John Gr. Fritchey. On the 3rd of November, 1874, four attorneys entered their appearance for the assignee of the judgment, and directed execution to issue, and which was accordingly issued and placed into the hands of the sheriff.

Under this execution, the sheriff seized and sold certain personal property of Joshua Bosley, one of the defendants in the judgment, and realized therefrom the sum of $781.41, and made return accordingly. On the 11th of -December, 1874, the attorneys, whose appearance had been entered for the assignee, professing to act for and in his behalf, filed in the cause an order directing the clerk of the Court to enter of record a release from the operation and effect of the judgment, of certain land, which belonged to Joshua N. Bosley, and was bound by the judgment; and which land had been sold and conveyed by Bosley and wife to Henry Warner. This release was entered in pursuance of an agreement with Bosley and Warner, by which the sum of $2000, much the larger part of the purchase money paid by Warner for the land, was paid over to the attorneys, or one of them, to be applied to the payment of the judgment. After this,' the judgment was allowed to stand until the 4th of February, 1879, when another attorney entered his appearance for the assignee of the judgment, and directed a fi. fa. to issue thereon.

Upon this last execution credit for the sum of $781.41, the amount made by the sale of the personal property under the first execution, was entered; hut there was no credit entered for the $2000, received of the purchase money paid by Warner; and the land sold and conveyed to the latter by Joshua N. Bosley and wife was levied upon and seized by the sheriff under this last execution. There was no other property levied on, and the sheriff made return of the execution and his levy thereunder to the Court; the land being appraised at $2700. ⁹⁷ Whereupon, David Bosley, who had become the owner of the land, came into Court and moved to quash the execution, and assigned' various reasons in support of the motion ; among which were, that the writ had irregularly and improperly issued; that the land levied on had been released from the operation and effect of the judgment, by the assignee thereof; and that the assignee had received the consideration for the release of the land from the operation of the judgment. At the trial, of the motion there was proof produced, and the Court having sustained the motion to quash, the case is presented to this Court on a bill of exception taken by the assignee of the judgment. The whole question presented is one of authority in the attorneys to enter the release of the land from the operation of the judgment.

It is well settled in this State, that an attorney as such has no power to compromise claims placed in his hands for collection, or in respect to which he may be employed to recover judgment. He can take nothing in satisfaction of the claim or judgment except money, nor can he receive a less sum than is really due thereon, without the express authority of his client obtained for the purpose ; and if he assume to act without such express authority, his acts, in making the compromise, or agreeing to take a less sum in satisfaction than is really due, will not bind the client, unless the latter, with full knowledge of all the facts, has ratified what has been done by the attorney ;