17 Ill. 148 | Ill. | 1855
The bill sets forth facts which give the Court of Chancery jurisdiction on two different grounds of subject matter. In the relation of client and attorney or solicitor, there is that confidence reposed in the latter which gives rise to very strong influences over the actions, rights and interests of the former. Hence the law, with a wise providence, not only watches over all the transactions of parties in this relation, but often interposes to declare transactions void, which, between other persons, would be good. And this is applicable to contracts or gifts generally, while the confidential relation continues, and is not confined to particular property about which the attorney may have been employed. It is not required that a client should establish fraud or imposition—the onus of proof—upon showing the relation when the contract dr gift was made, is upon the attorney to show fairness, adequacy and equity; and upon failure to make proof, courts of equity treat the case as one of constructive fraud. The¿ highest degree of good faith and fairness is expected, and exacted. Story Equ. Jurisp., Secs. 310 to 313 and notes, contains a general and correct summary of the law of this relation. The demurrer here admits the employment, as attorney, the conveyance absolute in fact, but as a security of indemnification, and that the liability has been released without damage; and yet the property has been sold in violation of the object for which it was conveyed. And now the attorney refuses any account.
Again: a second ground of equity jurisdiction is the general power of courts of equity in matters of administration, concurrent with the county courts in many respects, and to a larger extent in general, as embracing trusts, equitable assets, marshaling assets, and especially in matters regarding the realty, matters of discovery, fraud, and in the payment of legacies and distribution of the surplus. Story Eq. Jurisp., Secs. 530 to 545.
County courts have ample powers to carry out the ordinary matters of administration and settlement, but will find none to reach the equitable features of trust in relation to the condition of this realty, nor of the equitable relation between the defendants and the intestate. The parties in interest will find that relief to which they are entitled in a court of equity.
The allegations of this bill show that there was no intention of selling this land, or converting it into personalty, except upon a contingency, which has not happened; that was the necessity to save defendant, demurrant, harmless as bail. The actual sale, contrary to that intention, will not change the character of the proceeds. They will be regarded still as realty, and as such descend to the heirs, and do not go to the administrator, except upon petition and decree for payment of debts. The heirs and widow are therefore the proper persons to sue, and it needs no administration to reach this question.
The court will, upon taking jurisdiction of the transaction, investigate and decree upon the whole, embracing the personalty, and, if need be, subject it to a due course of administration. The suggestion that there are no debts and no other estate, might deserve the serious consideration of this court for its interference, were there no other ground for coming here instead of the county court for administrations. But the jurisdiction in this case does not depend upon the general powers of the court to overstep an administration, and we waive its discussion and determination. The defendant, demurrant, should have answered or pleaded to the merits.
There appears to be a full answer from the other defendant, English. But the cause seems to have been dismissed generally, on the demurrer or motion, for want of cost bond, without any determination or even investigation on the issue tendered by the bill and answer. Complainants were not- allowed opportunity for issue and proofs.
The decree is therefore erroneous as to both; for issues should have been formed and tried, and, if warranted by the evidence, an account directed.
Decree will be reversed and cause remanded.
Decree reversed.
