Leavitt v. Wallace

Parker, C. J. The disclaimer of the respondent, in the action in favor of Moody, if regularly put in, is binding upon her, and she is estopped to set up any title against the complainant, who is privy in estate, unless it be one acquired subsequently. 4 N. H. Rep. 182, Hamilton vs. Elliot. If she were duly summoned in that suit, which has not been denied, the appearance by an attorney of the court must be taken to have been regularly made, at least until the contrary is shown. 9 Wheat. R. 830, Osborn vs. U. S. Bank; 1 Binn. R. 214, McCullock vs. Guetner. And it is said the court will not inquire whether the attorney had a good authority, if he be responsible, but leaves [493] the party to his action against him. Com. Dig., Attorney, B. 7; 1 Salk. 86, Anon. ; 7 Pick. R. 137, Smith vs. Bowditch. But if the attorney be irresponsible, the court will set aside the judgment. 1 Salk. 88, Anon. So, if there be fraud, or collusion. Or the court may permit the defendant to come in and make a defence. 6 Johns. R. 296, Denton vs. Noyes. If the respondent did not authorize an appearance, a default and judgment against her should have been entered, which would have had the same operation upon the title. But the act of July 1, 1831, providing further remedies for landlords and tenants, is confined to those cases where there has been a tenancy, and is not to be applied to cases where the respondent holds adversely, and the relation of landlord and tenant has never existed. The title of the act indicates this. And the language in several places, in the act itself, shows that this is the true construction of it. As it appears here that no tenancy had ever existed, on the part of the respondent, under the title set up by the complainant, this proceeding cannot be sustained, notwithstanding the disclaimer. Judgment for the respondent.