Allen v. Frawley, 106 Wis. 638

Allen v. Frawley

106 Wis. 638 | Wis. | 1900

Dodge, J.

Respondent seeks to support his demurrer on several grounds, some of which require but brief discussion:

1. He contends that this is an action ex delicto to recover damages for deceit, and therefore does not survive. John V. Farwell Co. v. Wolf, 96 Wis. 10; Lane v. Frawley, 102 Wis. 373. We cannot agree with this view. The complaint is entitled to a liberal construction. Sec. 2668, Stats. 1898. So construed, it fairly presents a purpose and attempt to charge the acquisition of property by fraud, and to obtain, not so much the damages thereby caused the plaintiffs’ decedent, but a return to them of that which the defendant has fraudulently obtained and holds,— in other words, to charge defendant with the character of a trustee for her, and to enforce the trust. Such a suit in equity survived the death of the cestui que trust at common law. Cheney v. Gleason, 125 Mass. 166. Its survival is not dependent upon sec. 4253, Stats. 1898. True, certain relief prayed is not within the scope of such a suit,— as, for example, recovery of the $177 paid to Bolin on deficiency judgment, which is strictly damage to the deceased, and recoverable only in an action in tort; but excessive demand for relief is not ground for demurrer (Hawley v. Tesch, 72 Wis. 299), and it is not suf*643ficient here to overcome the rest of the pleading and destroy the general purpose above stated.

2. It is claimed that no legal or actionable fraud is set forth, in that the inducements alleged for the making- of the mortgage are either promises to perform future acts or misstatements of law. We need not, for the purposes of the question before us, discuss whether fraud may ever be predicated upon a promise of future performance; for this complaint alleges wilful misstatement of the law by attorney to client to secure an advantage to himself, with knowledge of the falsity and intent to defraud on the one side, and ignorance .and reliance on the other. This allegation is a most serious one to be made against any attorney, but we must remember that as yet it is only an unproved assertion, taken for true only in a technical sense, for the purpose of applying rules of law on that assumption. Whatever may be the rule as to intentional misstatements of the law as between persons upon parity with each other, we cannot for a moment assent to the proposition that courts of equity or law are not to protect the trusting client against such acts on the part of her attorney. In the whole realm of business transactions hardly any act presents more of moral turpitude nor more likelihood of effective fraud than the intentional .and self-profiting misinformation as to the law from a trusted attorney to his client, relying on him, as she must, for guidance and protection. It is gratifying to find few, if any, cases where the direct question has been passed on by courts. That fact speaks eloquently the response which lawyers, English and American, have given to the high responsibilities thrust upon them by the opportunities and -temptations of their confidential and influential relations with their clients. Courts have hardly had to deal with anything more aggravated than omission to advise clients ■against the attorney’s own interest, or honestly mistaken -statements of the law; but there has been, as a rule, no *644hesitation in declaring even these sufficient to defeat transactions from which the attorney benefits at the expense of his client.

Thus, Story (1 Eq. Jur. § 219) says: “If an attorney employed by the party should designedly conceal from his client a material fact or principle of law by which he should gain an interest not intended by the client, it will' be held a positive fraud, and he will be treated as a mere trustee for the benefit of his client and his representatives. , And in a case of this sort it will not be permitted to the attorney to set up his ignorance of law or his negligence as a defense or an excuse. It has been justly remarked that it would be too dangerous to the interests of mankind to allow those who are bound to advise, and who ought to be able to give good and sound advice, to take advantage of their own professional ignorance to the prejudice of others. Attorneys must, from the nature of the, relation, be held bound to give all the information which they ought to give, and not be permitted to plead ignorance of that which they ought to know.” Gibbons v. Hoag, 95 Ill. 45, 70; Cleine v. Englebrecht, 41 N. J. Eq. 498, 502; Bulkley v. Wilford, 2 Clark & F. 102, 177; Miles v. Ervin, 1 McCord, Eq. 524; Ryan v. Ashton, 42 Iowa, 365; De Rose v. Fay, 4 Edw. Ch. 40, 44; Rogers v. R. E. Lee M. Co. 9 Fed. Rep. 121; Baker v. Humphrey, 101 U. S. 494, 502; Pomeroy, Eq. Jur. 960.

This court is not disposed to relax or confuse the niceties of a code of ethics which for so many centuries has, with few exceptions, protected and justified the intrusting of vast property rights and most sacred interests to the care of lawyers, without thought or precaution as to their pecuniary responsibility. And we hold that the allegations of misrepresentation and misstatement of rules of law, if proved as set forth, would constitute actionable fraud.

3. Our greatest difficulty with this complaint arises upon the question whether it alleges that a situation such as war*645rants generally the relief demanded, or any equitable relief, has resulted from the fraud alleged. Apparently the pleader did not clearly conceive the distinction between those damages to the plaintiffs or their decedent which might justify and form a part of the recovery in a tort action, and the acquisition of specific property by the defendants upon which a constructive trust may be imposed. Among the former might perhaps fall the loss of the mortgaged property through the enforcement of a fraudulently acquired mortgage, if the facts making such loss probable were known to the defendants taking such mortgage; but, as has already been said, any right to that form of action died with Mrs. Allen. In this case the only connection of the respondent, T. F. Frawley, with the alleged fraud is by conspiracy. The specific acts were all committed, as asserted, by another. The scope and extent of that conspiracy is defined by the complaint to have been to “ fraudulently obtain from said Mary Allen a note secured by a mortgage on real estate, for the purpose of selling the same and dividing the proceeds among themselves.” The mortgage was so sold and the proóeeds received divided by the alleged conspirators, and thereby the whole purpose of the fraud and of the conspiracy set forth was accomplished. The proceeds of that conspiracy acquired by the defendants were their respective shares of the money for which the mortgage was sold. .To reach these Mrs. Allen required no aid from a court of equity. Tier remedy in an action at law ex contractu for money had and received was clear and adequate to secure to her all that equity could give, namely, payment of such money.

The subsequent events, namely, the failure of Mary Allen and of the plaintiffs to pay said mortgage, the foreclosure thereof, the offering of the mortgaged property at public sale, and the purchase and acquisition thereof for a new and approximately adequate consideration paid by defendants, are not by the complaint suggested to have been within the *646scope of the conspiracy or the contemplation of the conspirators. Neither is it alleged that the plaintiffs might not readily have prevented them, either by paying the mortgage or by setting up its fraudulent character as a defense in the foreclosure action, where, if proved, it would have been effective,'unless Bolin purchased without notice,— a, fact not alleged. The fact that the defendants purchased at the foreclosure sale is not significant. The loss to the-plaintiffs is not thereby enhanced, nor is the benefit derived by defendants from the mortgage thereby increased. If profit is made on the land, it results from an advantageous purchase in the open market, and at public sale, at which all others, including plaintiffs, had equal opportunity. True, all these conditions might also exist had there been a corrupt conspiracy to acquire the real estate of the decedent,, involving direct misrepresentation, not only in inducing the execution of the mortgage, but involving also the purpose and intent to pass that mortgage to an innocent holder, and through a foreclosure sale to effect transfer of the premises; and in such case there might, perhaps, be recovery of the property. But in absence of allegations we cannot assume such a conspiracy. Fraud must be clearly and specifically pleaded, both as to the acts accomplishing the deceit and as to the injury caused thereby,— the fraudulent result. Story, Eq. PI. §§ 251, 252. "We are constrained to hold that the complaint fails to connect the alleged deceit practiced on Mary Allen with the acquisition of title to the real estate by defendants, so as to charge them with a trust therein, and, by reason of such failure, is not sufficient to state any cause of action for equitable coguizance.

By the Court.— Order sustaining demurrer is affirmed.