Moulton v. Lowe

Shepley, C. J. The case is presented for decision upon an agreed statement, which is composed in part of two depositions of Samuel Kimball. In the one taken in this case, he denies any knowledge of the suit brought in his name against the plaintiff and others, until after it had been determined. He not only denies, that any person was authorized by him to commence it, but asserts that he would not permit his name to be used in such a suit, when others interested in the purchase of the lands proposed to commence one. The suit must therefore, upon the proof, be regarded as commenced and prosecuted without authority from him. Upon established principles the plaintiff will be entitled to judgment, unless some sufficient ground of defence is presented. Bond v. Chapin, 8 Met. 31. In defence it is insisted, that there has been a ratification of the proceedings by Kimball. His answers to certain questions propounded to him in the deposition taken in the case of Hough v. Richardson & als. are relied upon as proof of it. He was asked, whether a similar suit against the plaintiff and others had not been commenced in his own name; whether he had not joined with the others in those suits, and agreed to share the expenses of them. After answering in the negative, he says, “ if such suits as are mentioned have been instituted, deponent is in no manner interested or privy thereto.” If he must be considered as informed by the questions, that such a suit was pending, his omission to interpose and prevent its further prosecution cannot he regarded as a ratification of it, when his answers had distinctly informed the party prosecuting and the parties defending it, that he was neither interested in it nor privy to it. This was a repudiation of the suit in his own [471] name, if one existed, and no tribunal could be authorized to infer from his answers and subsequent sthence, a ratification of those proceedings. That repudiation does not appear to have been withdrawn or modified. It is then contended, that the plaintiff waived all objection to the prosecution of the suit in the name of Kimball by omitting to call for the authority of the attorneys to prosecute it. The plaintiff would be entitled to infer, that a suit commenced by counselors of the court under their signatures was not commenced without authority. It does not appear, that he had knowledge, or could have had, that it had been, until there had been a publication of the testimony taken in the suit in equity. Nor does it appear, that he could then have presented the objection with effect before the final hearing. An omission, if such there had been, to present a fatal objection to the further maintenance of the suit could not operate as a waiver of a right of action against one, who had prosecuted that suit in the name of another without authority. It is finally insisted, that the joint mortgagers with Kimball had a right to use his name without his consent, to obtain relief from their liability to pay the notes given by him in payment for his share of the land. The land appears to have been conveyed to the grantees by one deed, conveying it in distinct and separate shares. Each purchaser paid for his own share by cash and his own notes. All the purchasers conveyed the whole land in mortgage to secure the payment of their several notes. The other purchasers were not personally liable for payment of the notes given by Samuel Kimball. Their shares of the land might be taken for their payment by a foreclosure of the mortgage. If those shares could be relieved from that liability without the use of his name, they would have no occasion and no right to use it without his consent. Their suits in equity appear to have been commenced to obtain a revision of the contract of purchase and sale on the [472] alleged ground of a fraudulent misrepresentation ; to have the title acquired by the vendees reconveyed to the vendors; and to have the consideration paid and secured restored. If successful by a suit or suits in their own names they would no longer have retained any title to their shares of the land. Their mortgage would have been annulled ; and their property could not have been taken to pay the notes of Samuel Kimball. As the shares were conveyed separately each purchaser could act independently of the others in any proceedings respecting his own share ; and could obtain relief, if entitled to it, from payment for his own and any other share. All, this might have been accomplished without the use of the name of Samuel Kimball, and without including his share of the land in any suit. The other purchasers were not entitled to decide for him that he should rescind the contract and re-convey his share of the land. Being enabled, if successful in their suits, to obtain entire relief from liability to have their shares of the land taken to pay his notes, they were not authorized, without his consent, to institute an unnecessary suit in his name. Defendant defaulted, to be heard in damages.