19 N.M. 640 | N.M. | 1914
OPINION.
The charges in this case arose out of the sale of the Juan Jose Lovato Grant. The undisputed evidence shows that the title to this grant had been confirmed and the south half set apart to the legal heirs and representatives of Juan Jose Lovato; that later a suit for partition of the grant was brought, and that one-fourth of the south half was given to the attorneys as a fee for prosecuting such suit, thus leaving the east threefourtlis of the south one-half of the grant to the heirs, whose fractional interests were shown by the decree of the court in said action; it further appears that all the heirs and assigns of Juan Jose Lovato gave to George Hill Howard a power of attorney to sell their interests in said east three-fourths of the south half known as the “heirs’ tract,” at a certain price per acre, and that after several attempts, said Howard finally sold the said heirs’ tract to the New Mexico Irrigated Lands Company for the sum of twenty thousand dollars, and took a mortgage from said company to secure the payment of the money. The New Mexico Irrigated Lands Company never paid the purchase price, and at the time the entire grant was bought by Messrs. Tutt & Skinner, about December first, 1908, the mortgage and interest tliereon amounted in round figures to the sum of twenty-four thousand dollars. At the time of the purchase of the grant by Tutt & Skinner the purchasers did not pay cash, but gave their notes payable in one year, and also assumed the twenty-four thousand dollar mortgage on the heirs’ tract.
The first charge may properly be divided into three divisions, in regard to the respondent’s relations to the Lovato heirs; first, as to those heirs who were neither clients of■ respondent nor clients of Catron & Catron; second, as to such heirs as were clients of Catron & Catron; and third, as to those heirs who were respondent’s clients.
As to the first set of Lovato heirs, the respondent testified that he aided, not in the capacity of an attorney at law 'for them, but simply as a broker of Messrs. Tutt & Skinner, the purchasers of the grant, who had by such purchase assumed the mortgage of the New Mexico Irrigated Lands Company; that the purchasers had given their notes for the purchase price, due i,n one year, and that they were desirious of discounting those notes and closing out the matter for the smallest amount of money possible; that there was some discussion in regard to a proposed foreclosure of the mortgage but that it was finally decided to purchase the interests of the mortgagees, and, to effect this plan, the respondent undertook to buy the outstanding interests of the Lovato heirs under the mortgage. The testimony of the respondent as to the agreement with Messrs. Tutt & Skinner is corroborated by other witnesses and is not disputed, and in furtherance of this agreement and to carry out the plan made with Messrs. Tutt & Skinner, the respondent sent letters to his agents, enclosing blank forms of assignment for execution by the heirs. These assignments purported to convey to him the entire interest of the heir in the mortgage for which the heir agreed to accept a certain amount, which was inserted in the assignments. These assignments were all in the same form, one of which reads as follows:
“Whereas, the undersigned, was awarded an interest in that part of .the Jnan Jose Lovato grant which was alloted by the decree of the court to the heirs of the grantee and his assigns, and is commonly known as the “heirs’ tract”; and
Whereas, the undersigned afterwards gave a power of attorney to George Hill Howard to sell and dispose of such interest; and
Whereas, afterwards the said Howard disposed of and sold such interest but did not obtain the money for which it was sold; and
Whereas, there is due to me after paying fees and commissions the sum hereinafter stated:
Now, therefore, in consideration of the premises, I, the undersigned, hereby assign and set over to A. B. Renehan, all my right, title and interest in the said “heirs’ tract” and any moneys due to me by said Howard, directly or indirectly, for and on account thereof, and hereby empower him to collect and recover and adjust the same in such manner as he may be advised, in my name or otherwise, at his election, o.n condition as follows, to-wit:
1. That this writing shall be deposited in the First National Bank of Santa Fe, New Mexico, by me, with directions to deliver the same to the said Renehan, or his order, when, within ten days of the date of such deposit, he deposits or causes to be deposited to my credit in said bank, the sum of t$287.50.
2. In order to identify myself as the person rightfully entitled to said payment and share I further certify that my father’s name was Polito Lovato, that my mother’s name was Maria Antonia Garcia de Lovato, that the name of my paternal grandfather was Ysidro Lovato, that Ihe name of my paternal grandmother was Beatris Lovato, that the name of my maternal grandfather was Antonio Urvan Garcia, and that the name of my maternal grandmother was Maria Dolores Garcia.
3. I hereby certify that I have not sold or assigned my rights as against said Howard to any other person than the said Renehan, and I admit that the said sum of money, when deposited by the said Renehan, shall have been deposited by him to my credit on the strength and in reliance upon the declarations in paragraphs 2 and 3 hereof.
4. Tbe deposit by me of this writing with the said First National Bank of Santa Fe, New Mexico, shall be sufficient instruction to it to carry out the purposes thereof.
In witness whereof, I have hereunto set my hand this 24th day of February, 1909.
(Signed) Marcelino Lovato.
TERRITORY OF NEW MEXICO, COUNTY OF RIO ARRIBA. S. S. '
On this 24th Day of February, 1909, before me personally appeared Marcelino Lobato to me well known to be the same person described in and who executed the foregoing instrument and acknowledged to me that he executed the same as his free act and deed.
In witness whereof, I have hereunto set my hand and notarial seal the day and year first written in this certificate.
(Signed) Quinby A. Woodward.
NOTARY PUBLIC.
We hereby certify that we know the person whose name is signed to the foregoing assignment to be the same person he pretends to be.
(Signed) Q. Woodward.
(Seal) (Signed) Tom Lobato.
Dec..........................................., 1908.”
The court is of the opinion that although the amounts-due the respective heirs under the mortgage could prob-' •ably have been collected from the substituted trustee, G. Yolney Howard, without discount when the notes should become due and the mortgage paid, nevertheless these heirs had the right to sell their interests for cash at a discount to the respondent or any other person for the amount he was willing to pay them and that they were willing to accept, and his purchase from the heirs of their interests in the mortgage, which Tutt & Skinner had assumed, is in no way improper and not ground for disbarment.
As to those heirs who were the clients of Catron & Catron, there appears to be a conflict in the evidence as to just what took place. It is admitted that copies of the as■signments, as set forth above, were sent by the respondent and his agents to the various Lovato heirs; that some of the heirs who had received these forms of assignments from respondent and his agents, not caring to deal directly with the respondent, employed the firm of Catron & Catron to look after their interests in this behalf; it further appears that these heirs came to the office of Catron & Catron, bringing with them the form of the assignments ■set forth above; that two of their number were sent by Mr. Catron to the office of Mr. Renehan for the purpose of obtaining a list of the heirs and the amounts due them. 'There is a conflict in the evidence as to what happened from this point on. The witness T. B. Catron testified that he understood from Renehan, that he, Renehan, was paying Catron’s clients the full amounts of their claims, and further testified that he did not look at the amounts set out in the assignments but assumed from what Renehan had said to him that the amounts which his clients were to receive from Renehan, as shown by the list, were the full amounts due, without deductions, for their proportionate shares in the grant as fixed by the decree in the partition suit; he further testified that he knew that Renehan was the agent of the purchaser and that the money for the purchase of the grant was being paid through him, and that he did not, owing to representations made to him bjr Renehan, read over the assignments carefully nor look at the decree in the case to learn what the ■fractional interests were nor make any calculations as to the amounts of money coming to his clients thereunder. The respondent, on the other hand, testified that he made no representations whatever as to the amounts on the lists being the full amounts that were due the clients of Cat-Ton & Catron, but merely that these amounts were the sums lie was willing to pay for the interests of those heirs he testified as to a conversation with Catron in which the latter said: “Is this all you are paving for these interests?” and on being informed that it was, that Mr. Catron stated, “See that the payment is made through me,” and respondent further denied that he in any way misled Mr. Catron by any statement or that he made any representations to him that were false.
As to those heirs who were the clients of respondent, the respondent testified, and there is no direct evidence except inferences which might be drawn to the contrary, -that he fully informed all of them as to just how much money they could receive from the substituted trustee, when the notes matured and how much if they would accept the cash payment immediately, instead of waiting until the notes of Tutt & Skinner should mature, which was a period of about one year. We find, in the absence of any direct testimony to the contrary, that respondent’s clients fully understood the situation, signed the assignments and accepted from him the cash set forth therein as the amounts due them, and that the consideration of such acceptance of a smaller amount than they would otherwise have received, was the fact that the money was to be promptly paid in cash.
The above statement, as to those heirs admitted to be-clients of respondent, applies to a-11 of them, except Antanio Faustin Lovato, who was also concededly a client of respondent. As to the transaction between the respondent and Antonio Faustin Lovato, there is a direct conflict' of testimony. It appears that Antonio Faustin was a claimant of two separate rights in the Lovato grant, one in his own name and one as assignee of Jose Maria Lovato, the latter being the owner of a very large interest in the' grant and who had assigned it to Antonio Faustin for a small sum of money. It appeared that G-. Volney Howard represented, as attorney at law, Jose Maria Lovato, and that he was attempting to set aside this assignment to Antonio Faustin on the ground of fraud, and to obtain a larger sum of money for his client, Jose Maria. The respondent testified that in his conference with his client,, Antonio Faustin Lovato, in •which this matter was fully discussed, he informed Antonio Faustin of all the facts in the case; that is, that Howard as the attorney for Jose Maria, was attacking the validity of the assignment, and that if suit were instituted it was impossible to tell how much Antonio Faustin would be able to obtain under this assignment from Jose Maria. Eespondent further testified that he made full disclosure of the situation to Antonio Faustin and that Antonio Faustin rather than take any chances of losing all under the assignment in a contest between himself and Jose Maria, agreed with the respondent to accept the sum of two thousand dollars and to sell his own interest and also his claim under the Jose Maria assignment to the respondent, and to allow the respondent to obtain what he could on them for himself, whether it was more or less than the sum of two thousand dollars. This understanding as testified to by the respondent and the full disclosure therein made to Antonio Faustin is denied by the latter, who testified that he did not know what the amount of his interest was nor that of his assignor, Jose Maria, and that he accepted the two thousand dollars believing it was the total amount due him in his own right and as assignee without any deduction. He testified further that the assignments were not read over to him. The testimony of Antonio Domingo Lovato, the brother of Antonio Faustin, who was. present at this conversation, is the .only other testimony on this point bearing upon the agreement, and it is not directly corrobative of either that of the respondent or of Antonio Faustin; he testified, however, that the assignments and papers in question were read over to Antonio Faustin in his presence. There was also a letter put in evidence from the daughter of Antonio Faustin, who had, by his authority,' charge of his correspondence generally, acknowledging the receipt of the two thousand dollars and expressing entire satisfaction with the transaction.
As a part of the charge in this case it is alleged that the amounts originally entered in the • assignments and which amounts were paid to the various Lovatos, were subsequently raised by the respondent to correspond to the amounts they were rightfully entitled to receive without deduction, and that these assignments, so changed, were presented to G. Yolney Howard, substituted trustee, and by him, paid, and that thereby the substituted trustee was deceived into paying to said Eenehan the full amounts of said claims.
The only evidence to support this charge is found in the testimony of the substituted trustee, who states that he did not observe the amounts inserted in the assignments when checking over the same with the respondent, saying that he examined them only as to the form. The witness further testified that he had no mind or memory for figures or ability to make calculations, and that he had turned the entire matter over to the First National Bank of Santa Fe, assuming that the figures inserted in the assignments were the correct ones, and that the Lovato heirs were obtaining the full amount that they were entitled to, without deductions. The respondent testified that subsequently to the payment of these amount to him on such assignments, he was requested by the substituted trustee, G. Yolney Howard, to raise the amounts so that they would correspond with the amounts actually due the Lovato heirs under the mortgage, in order that these assignments would stand as receipts for the amounts that the substituted trustee had paid out under the mortgage for the Lovato heirs. The witness, Howard, did not deny that such in truth was the ease, although he was examined at length and in detail concerning it. In this state of the evidence the court can come to but one conclusion, which is that the figures in the assignments were not raised as alleged, but were raised at the request, and for the purposes, of the substituted trustee subsequent to the time of the payment of the assignments.
There is a charge that the respondent solicited persons to employ him as an' attorney, but the evidence, on the contrary, we think showed that as to those Lovatos who were admittedly his clients, they had written to him and employed him on account of their dissatisfaction with other counsel, which dissatisfaction was based on the delay in obtaining the money for their interests in the grant. As to the others, the evidence, we think, does not support the contention that the respondent solicited any of them to employ him as an attorney, his dealings with them being as hereinbefore set forth, that is, as a purchaser of' their interests in the grant.
The evidence in this case was voluminous and cannot be set out at any length in this opinion. It was heard by the court in the first instance and when transcribed was read and carefully considered. The decision of the court in a case of this kind necessarily rests upon the weight given to the evidence adduced. The authorities in disbarment proceedings are not uniform as to whether such a suit is civil or criminal, and also as to the amount of proof' necessary to sustain the charges. Ify some courts it is held that being criminal the charge should be proven beyond a reasonable doubt, and by others it is held that all that is required is that the charge be established by a preponderance of evidence, like any civil case. Some of the courts attempt to take a middle ground, as to the-amount of proof required, using such phrases as “clear preponderance of evidence” and the like, but whatever view is taken of the character of the proceeding, whether civil, where the case should be established by a preponderance of evidence, or criminal, where it should be established beyond á reasonable doubt, or some middle ground, the court is of the opinion, under all the evidence submitted to it and after carefully weighing and considering it, that a case for disbarment has not been established.
We approve of the langauge used in the case, in Ee Hamilton Baless, 28 Mich., 508, where the supreme court, speaking through Justice Cooley says. “While not strictly a criminal prosecution, it is of that nature, and the punishment, in-prohibiting the party following his ordinary occupation, would be severe and highly penal. The majority of the court are not satisfied that the evidence gives such clear support to the charges as should be required in such cases.” Again, in the case of, In Ee Haymond, 53 Pac. 900, the court said: “This accusation is in the nature of a criminal charge, and all intendments are in favor of the accused. The accusation is not sufficient if, all its statements being true, the accused could be innocent. * * * A construction favorable to innocence must be given, if possible.” This court, in the case, In Be Catron, 8 N. M. 253, in passing upon the question of the amount of proof required in a disbarment proceeding, lays down the law as follows: “But a result which is so humiliating in its effects and so disastrous in its consequences to the respondent, should not be reached upon circumstances that appear merely suspicious, but only upon that credible and convincing testimony which will lead with reasonable certainty to the establishment of his guilt. * * * * This right and privilege (of his profession) should not be destroyed or taken from him, and he be deprived of its benefits and driven in humiliation and disgrace from his profession, unless upon reliable proof, — such proof as would be sufficient to satisfy the minds of the court in determining questions involving the liberty and property of a citizen.” It would be useless to multiply authorities where the law is plain, and the question for the court is the weight to be given to the evidence, and we shall content ourselves with the above quotations.
Whether respondent is civilly liable to any of the parties who claim to have been injured by him, we do not decide. It may be that the circumstances shown in this case might authorize a recovery from the respondent by some of the parties with whom he dealt. Where a transaction between an attorney and his client, of advantage to the attorney, is called in question, in an ordinary civil action, the burden is upon the attorney to show, that not only that he used no undue influence, but that he gave his client all the information and advice which it would have been his duty to give if he himself had not been, interested, and that the transaction .was as beneficial to the client as it would have been had the client dealt with a .stranger, and slight evidence of over-reaching in such a case will justify a recision of the contract. Whether the facts in this case, however, would authorize a recovery from the respondent is not for us to decide.