26 Miss. 428 | Miss. | 1853
delivered the opinion of the court.
The appellees state in their bill, that they were induced to execute the release solely on the ground that McComb was represented by Hoopes to be hopelessly insolvent, and that the sum of $100 was all that could be obtained. This statement of the bill is fully sustained by the letter written by the appel-lees in reply to one written by Hoopes.
The bill avers, that in procuring the above release, Hoopes concealed from his clients the true state of facts relative to said compromise, in this: that McComb and wife had commenced their action of ejectment against Hoopes, to recover from him an interest of two thirds of a lot of ground, on which his residence was situated; that McComb and wife, having a good title to the same, would have succeeded in prosecuting to final judgment their action of ejectment; that, in consideration of having McComb released from said judgment, they agreed with Hoopes to dismiss their action of ejectment, and convey to him their interest in said property; that it was to consummate this arrangement for the benefit of Hoopes himself, that induced him to make the representations which he did make as to McComb’s insolvency, &c.; that the fact that McComb and wife were willing to give their interest in discharge of the judgment against McComb, was never communicated or intimated by Hoopes to the appellees ; and that, in keeping this fact concealed, and stating that the sum of $100 was all that McComb would pay to be released from the judgment, Hoopes practised a fraud upon the rights of the appellees.
The chancellor rendered a decree, requiring Hoopes to convey the interest acquired from McComb and wife to the complainants. From this decree, the cause has been brought by appeal into this court.
It is objected, that the decree is erroneous in not giving Hoopes( the privilege of paying to the complainants the amount of the judgment, and retaining the property. We think this objection well taken, and that the decree in this respect ought, under any view of the case, to be modified.
But, it is said that no case for relief has been made out by the complainants, and that therefore the bill ought to be dismissed.
So far as this controversy is concerned, it may be regarded as true, as stated by Hoopes, that McComb, the judgment debtor, was insolvent, and that nothing could be made by legal process out of him on the judgment. The attorney was, for a considerable time, engaged in a correspondence with his clients, endeavoring to convince them that the sum of $100, the payment of commissions and court costs, constituted the best arrangement that could be. made with the judgment debtor. Believing the statements of the attorney to be true, the clients finally consented to release their debtor upon these terms; and if these statements of the attorney embodied, the whole truth of the matter, there is no doubt but the attorney would stand acquitted of all blame in the transaction. The fact is now shown, that McComb never proposed to pay to the attorney any sum of. money whatever to be discharged from the judgment. He never made but the one proposition, and that was the one stated: that he would dismiss his action of ejectment and convey the title arrayed against Hoopes, if he would procure a release of the judgment from the appellees. This was McComb’s proposition. He made no other. This proposition, so far from being communicated to the clients, and their action
When the truth of the transaction, as it existed, comes to be understood, the fraud is. palpable. McComb and wife were pursuing Hoopes for two thirds of his house and lot. McComb proposes to release this claim, if he can be released from the judgment. Now, compare this proposition with the one submitted by Hoopes to his clients, that McComb would pay $100 to be released from the judgment; and can they be identified as even parts of the same transaction? Does not the fraud at once, in the most glaring manner, show itself? The attorney is interested in saving his home, and McComb is interested im getting rid of the judgment against him; and the only hope of the attorney to make a good arrangement is to do what he
The case may be. briefly stated thus : The clients never consented for the attorney to take the two thirds interest of Me-Comb and wife in the lot, in payment of the judgment. In this respect, the attorney acted without authority. He took property without authority, in payment of his clients’ judgment. They have a right to ratify his act, and to take the amount of the judgment, if the attorney prefers paying it, this being the extent of the injury and of the damages occasioned by reason of the fraud established. The decree may operate somewhat harshly upon the defendant; but it is the only one which, under the circumstances, can be made. He took upon himself to show, at all times, that he communicated the true state of facts to his clients, when he procured their release of the judgment. His duty required him to make a full disclosure of the transaction, as it existed. He acted at his peril, when he kept part of it concealed from his clients. He cannot profit by this concealment. What he acquired must inure to the benefit of those
The decree will be modified so as to give the appellant Hoopes the right to pay the amount of the judgment as ascertained by the decree below, within sixty days from this date. On failure to pay in that time, the property to be conveyed as directed by the decree.