The object of this suit in equity is to have the defendants declared the holders of the title to .a lot in Kansas City in trust for the plaintiff, with a further prayer for general relief. The court found for the defendants, and the plaintiff Eoff appealed. The defendants, Leigh H. Irvine and Louis C. Irvine, are
The pleadings and the undisputed evidence show that the plaintiff purchased the lot in 1886, his grantor having only a tax title. 'Some doubt arose as to the validity of his title, and his abstract of the title was placed in the hands of Leigh EL Irvine and Mr. Blair for examination. They were attorneys at law and partners doing business under the firm-name of Blair & Irvine. They received the abstract about the first of May, 1887. On June' 1, 1887, Hefferman, who was a former half owner of the lot, conveyed his undivided one-half to one Kribben, who resided in the city of St! Louis. Kribben conveyed the same interest to Louis C. Irvine by a quitclaim deed, dated the fourteenth of September, 1887, for $100 paid by either Leigh EL Irvine or by Blair & Irvine. On the eighth of October, 1887, Leigh EL Irvine procured a quitclaim deed from Askew for the other undivided one-half for the consideration of $100 ; and, on the eighteenth of the same month, conveyed his interest by quitclaim deed to his brother, Louis C. Irvine ; and, in August of that year, the latter conveyed the lot to his mother by a warranty deed.
The first disputed issue of fact is, whether the relation of attorney and client existed between Leigh El. Irvine and the plaintiff. It appears the plaintiff and a Mr. Stevens were neighbors, and in former years Stevens had been a practicing attorney ; plaintiff gave Stevens the abstract of title and requested him to examine it, but Stevens being out of the practice advised plaintiff to employ Blair & Irvine. The plaintiff did not know these attorneys, and he requested Stevens to take it to them for examination. The evidence of Stevens is that he left the abstract at the office of the attorneys on a table, but he does not know whether either of them was present. This was probably
The evidence of Mr. Stevens, in its general tenor, leaves it in doubt as to whether he employed Blair & Irvine to examine the abstract; but he produces this doubt by the erroneous assumption on his part that it required a payment of money by plaintiff to the attorneys to create the relation of attorney and client. He was on friendly terms with Blair & Irvine, and his remembrance is defective as to what he did in the execution of his agency. The proof is clear that plaintiff •directed Stevens to employ these attorneys, that Stevens left the abstract at their office, and that Irvine thereafter sent the plaintiff the note before mentioned, and advised the plaintiff to get a quitclaim deed from the owner. Irvine proposed to get it for him. This evidence •as a whole shows beyond doubt that Stevens did employ these attorneys, and that they examined the abstract pursuant to that employment. The relation of attorney and client did, therefore, exist between Blair and Leigh H. Irvine on the one hand and the plaintiff on the ether.
Nor does it make any difference that the attorneys •or either of them obtained the outstanding title after plaintiff withdrew the abstract from their hands. It may be conceded that such withdrawal put an end to their employment, but that did not leave them free to buy in the title about which they had given their client advice, and then use it against him. Says Weeks: “An attorney cannot use information received by him from his client in opposition to the client. An attorney, for instance, who has been consulted respecting the title to lands, cannot afterwards .become a purchaser of such lands from the state or from a third party, to use against his client. Such a purchase will inure to the benefit of the client. Weeks on Attorneys, secs. 277, 279. The relation of attorney and client is based and founded upon trust and confidence, and information acquired concerning the subject-matter of the employment, whilst the relation exists cannot be thereafter used by the attorney against the client. No system of jurisprudence with which we are acquainted permits such an abuse of the confidence and trust reposed in an attorney. It follows that plaintiff is entitled to the relief which he .asks as against Leigh H. Irvine.
The next question is whether Louis C. Irvine took the title subject to the equitable rights of the plaintiff. Hefferman, it is to be remembered, conveyed the
The attorneys, Leigh II. Irvine and Blair, were not called as witnesses. Louis C. Irvine testified on two occasions, one by deposition taken and read in evidence by the plaintiff, and again in his own behalf on the trial. In former years he had been a lawyer, but at the time in question was a real-estate dealer and speculator. He on both occasions states that he had no notice or knowledge that his brother and Blair had been employed to examine the plaintiff’s abstract of title. In his deposition he says he did not know Kribben, had no dealings with him, and did not know who paid Kribben for the deed from Kribben to himself; that his brother used Kribben’s name as a matter of convenience; that he purchased the property from his brother and Blair, and at his brother’s request took the deed to the one-half from Kribben; that he did not examine the title but relied upon Blair? s opinion as to it; that he knew his brother and Blair ’were purchasing the lot from Hefferman and Askew ; and that there was in reality no consideration for the deed from himself to his mother. In Ms testimony given on the trial he says Ms attention was called to this property by his brother and Blair in conversations concerning invalid tax titles under a decision of this court; that they said they were looking up such titles and had a man searching the records and that money could be made out of them ; that they talked more about this lot than about any other one; that the conversations lasted over a period of three or four months, and that he finally
The first deed to Louis bears date the fourteenth of September, 1887, and if he and his brother had conversations concerning the proposed purchase over a period of four months before it was made, then some of the conversations must have occurred during or near the time the plaintiff ’ s abstract of title was in the hands of Leigh Irvine. It is perfectly clear that Leigh discovered the defects in the plaintiff’s title when acting for plaintiff in the capacity of an attorney, and it seems reasonable that Louis must have had some information as to how and under what circumstances those defects were discovered. Louis, of course, knew that the plaintiff held the tax deed, and he took a bond from his brother Leigh to remove the cloud upon the title created by the tax deed. He purchased knowing that he must have a contest with the plaintiff as to the validity of the tax deed, and knowing that a conveyance of the property to his mother could not affect that contest. Why then make the deed to the mother without consideration unless there was some other claim against the property %
But it is not necessary to pursue this inquiry as to actual notice of plaintiff’s equitable right to a definite conclusion. Louis claims under quitclaim deeds and nothing else, so the case concedes, though but one of them is found in the record. A purchaser by quitclaim deed, for value and without notice, acquires title, as against a prior unrecorded deed or other instrument conveying or affecting real estate ; for such is the effect of our recording act. Fox v. Hall, 74 Mo. 315; Boogher v. Neece, 75 Mo. 383; Willingham v. Hardin, 75 Mo. 429; Munson v. Ensor, 94 Mo. 504; Ebersole v. Rankin, 102 Mo. 488; Hope v. Blair, 105 Mo. 90. But
As Mrs. Annie K. Irvine paid no consideration for the deed to her she occupies no better position than the other defendants. Indeed, it is not claimed that she does.
The plaintiff in his petition offered to pay into court Cor defendants the amount paid by Leigh H. Irvine for the outstanding title, conceded to be $200; and he renewed that offer in open court on the trial of this cause. This amount with interest the defendants are entitled to have refunded. Baker v. Humphrey, supra; Davis v. Smith, 43 Vt. 269-278.
The judgment in this case is, therefore,' reversed and the cause remanded with directions to the circuit court to enter up a decree- for the plaintiff divesting the defendants of all title acquired by the said several quitclaim deeds and the deed to Annie K. Irvine, and investing the same in the plaintiff upon the payment by the plaintiff into court for defendant the said $200 with interest thereon at six per cent, per annum from the eighth of October, 1887.