Without allowing ourselves fo be confused ' by the multitude of cases cited on both sides, of the question, and taking a common sense view of it, we are satisfied that the decision of his Honor in the Court below is in accordance with law.
A mere statement of the ease would seem to be sufficient to justify this conclusion. By the act of 1857, the Justices of the Court of Pleas and Quarter Sessions for the county of McDowell, are empowered to take stock in the Western North Carolina Railroad Company, (which passes through the county,) provided a majority of the voters of the county be given -in favor of a subscription for some specific amount. At an election duly held a subscription of $50,000 was authorized, and *231in pursuance thereof the Justices, by their chairman, William Murphy, subscribed for $50,000 of stock.
No order was made in regard to the issuing of the bonds required to pay the county subscribtion ; and that matter was left “for further directions” until the Company organized and began operations. So far all is regular. The county is the owner of $50,000 of stock and owes that sum to the Company, to be discharged by county bonds, which it was the duty of the Justices to issue.
By the change of our system, the Court of Pleas and Quarter Sessions is abolished and the government of the county is vested in Commissioners. Yery soon after this change, Mr. Brown, who was the chairman of the Court of Pleas and Quarter Sessions at the time of the change, executed the bonds in controversy and affixed the seal of the county, and the bonds were countersigned by A. M. Finley, the Clerk of the Court. These bonds were delivered to the President of the Company, and accepted by him in discharge of the county subscription. By the action of Murphy, chairman, the county became the owner of the stock, the. only question left open was the mode and manner of signing the county bonds.
Brown, chairman, and Finley, clerk, execute the bonds in the name of the county and affix the'seal of the county. The bonds are accepted by the Company, in payment of “ the McDowell county subscription.”
Assume that these bonds were of no force, for the reason that the Justices of the Court ef Pleas and Quarter Sessions had omitted to make an order, that their chairman execute bonds to be countersigned by the clerk, which bonds it was the duty of the Justices to cause to be executed ; and that by reason of such omission of duty, Thompsou and Finley had no authority to execute the bonds, wo have the question of ratification.
1st. Were these bonds a subject of ratification?
On the argument much was said about the distinction between “ voidable ” and “ void,” and the position was taken by *232the counsel for the defendant that these bonds, being void, could not be ratified. According to the cases, a void estate cannot be confirmed or’ratified (the two words being used in the same sense) for the plain reason, that there is nothing to be confirmed or ratified. Eor instance, a tenant for life makes a lease for years. The remainderman or reversioner may confirm the term during the continuance of the life estate, but after the termination of the life estate, the- term cannot be confirmed, for it is void, and there is no estate to be confirmed; so, if a lease for years be made, to- be void, on non-payment of rent, after forfeiture, it cannot be confirmed, for there is no estate to be confirmed. See Bac. Abrid., Leases and Terms for Years. To avoid this consequence, conveyancers instead of drafting the lease, so as to make it void on non-payment of rent, adopted the form, “ in case the rent is not paid,” &c., the lessor may enter and avoid the term, thus giving him the right to waive the forfeiture and let the term continue, upon compensation being made.
But this learning has no application to our case, for here we have certain papers, purporting to be county bonds, and there is a thing in existence, although it be of no force or legal effect, unless it be confirmed or ratified, so as to give to it force and legal effect. We can see no principle upon which that may not be done. A wife, having no separate estate, without the assent of her husband, buys a carriage and pair of horses on his credit. The contract is void, that is, it has no force or legal effect, but it is a subject for confirmation. If the husbaud allows his wife to use the carriage and horses there is an implied ratification, and he is bound to pay the price agreed on, because he recognizes the action of the wife as agent for him.
So A sells a tract of land owned by B, receives the purchase money, executes a deed in the name of B, and signs the name of B “ by A Ms attorney.” This deed is void, in one sense of the word, that is, it has no force or legal effect, but still it is a thing existent and if B elects to ratify the sale and executes a deed ratifying the action of A in as full and ample a manner *233as if lie had empowered him before the date of the sale to sell and convey the land; can any reason be suggested why this deed being registered, does not ratify the deed executed by A in as full and ample a manner as if there had been a power oí attorney previously executed? No. objection to the effect of a deed of ratification arises to us, and we are of opinion that the deed executed by A, as the agent of B, would take effect under the maxim, omnis ratihabitio retrotrahitv/r et mandato priori oequiparatxbr, every ratification relates back and equals a covenant. The principle is, he who can command may ratify.
So, had the Justices, or the Commissioners who succeeded them, caused a resolution to be entered upon their journal to the effect that the action of Brown and Finley in respect to the county bonds, was ratified, so as to make the bonds valid binding upon the county, the , resolution would have taken effect, and indeed, it would have amounted to an amendment, nunc pro tunc, the doing of that afterwards which ought to have been done before, for as the county had made the subscription and become owner of the stock, it was the duty of the county authorities, to have the bonds issued in payment.
Whether the fact that the county authorities represented this stock at several meetings of the stockholders, and levied taxes one or two years to pay the interest on the bonds has the effect of an implied ratification is a question into which it is not necessary for us to enter. We wall merely remark, a ratification must be in a manner as solemn as that required for the command, and we will further remark, there can be no doubt that the county is bound to pay for its stock, if these bonds are held to be void the holders can, in the name of the Railroad Company, have an action of mxmdamus, to compel payment of the county subscription. The fund to be divided among the bondholders. Gui bono ? Are not the county authorities fighting for nothing? The debt of the county has to be paid.
2. Waiving the question of an implied ratification of these bonds by the county authorities, we put our decision upon the effect of the statute of March 1st, 1870. That act, in so many *234words, ratifies the county bonds executed by Brown, aud the only remaining question is as to the power of the General Assembly to make such ratification.
3. The power of the General Assembly is denied, upon the ground that the -ratification was a judicial, and not a legislative act; it was for the county to decide whether these bonds were valid or not.
The General Assembly, by the statute referred to, does not undertake to decide that these bonds are valid, but it does undertake to give validity to those bonds by aiding the omission of the Justices in respect to the order, that Brown, chairman, and Finley, clerk, execute the bonds, and for this purpose adds to, and amends the act of 1859, by enacting ci after the vote is taken, and the stock is subscribed,” John L. Brown and A. M. Finley be authorized to execute bonds for the amount, and affix the seal of the county, and the bunds so executed shall be valid.” Clearly, the General Assembly had power to make this “ command ” in the act of 1859. Why did it not have power in 1870 to amend the act of 1859, by express!}' naming the parties who were to act as agents of the county in executing the bonds, whereby to satisfy and give effect to the county bonds? This is legislation made necessary, to supply an omission on the part of the J ustices to make an entry, that their chairman, Brown, and the clerk, Finley, should execute the bonds for the county. In passing this act nunc pro tunc, the General Assembly ratify what ought to have been done in carrying out the provisions of the act of 1859, but it does neither more or less than it had power to have done in 1859, and what it is presumed it would have done, had this objection to the manner of the'execution of the bonds been anticipated. For the execution of the bonds, in payment of the county subscription, was a plain duty imposed upon the Justices of the county of McDowell. Campbell v. the city of Kenosha, 5 Wallace, 194, and the cases cited under the head of “ Ketroactive Statutes.”
No error.
Per Oubiam. Judgment affirmed.