Kirk's Appeal, 87 Pa. 243

Kirk's Appeal

87 Pa. 243 | Pa. | 1878

Mr. Justice Misrcur

delivered the opinion of the court,

This contention arises on the distribution of a fund produced by a sheriff’s sale of real estate. The rights of the claimants depend on the effect to be given to a release executed by E. Hammond, of the lien of the judgment on which the appellants claim the money. The judgment was recovered by McNeal. . In the assignment thereof, which he made to Hammond, he declared it was “to be held by Hammond as collateral security for the payment of the claim of Boggs & Kirk, for which claim I have this day given to the said Boggs & Kirk three promissory notes.” This assignment was filed of record. The prothonotary entered on the docket the substance of the assignment, and added: “ see paper filed.” Hammond was an attorney-at-law. As attorney for Boggs & Kirk he took the notes of McNeal for a debt due them, and accepted the assignment. Pie therefore held it for their benefit. The assignment showed this fact. As between him and them he had no more right to release the lien of the judgment on lands bound thereby, than he had to give up the notes to the maker without payment.

In conducting a suit, an attorney-at-law has large powers. After judgment recovered, he may execute a valid receipt on its payment. Yet he cannot sell and assign it without the ratification of his client: Campbell’s Appeal, 5 Casey 401. Nor can he accept land in satisfaction of a debt of his client: Huston v. Mitchell, 14 S. & R. 307; Stackhouse et al. v. O’Hara, 2 Harris 88; Stokely v. Robinson, 10 Casey 315. His authority is limited to the discharge of that professional action which lies at the foundation of the relation of counsel and client. He has large discretionary power as to the manner and time of prosecuting his client’s claim to judgment. He may order and direct the sheriff in regard to the collection of the execution. These powers are given to him to protect the rights and advance the interests of his client. He has no right to release property bound by his client’s judgment. This appears to have been conceded by the learned judge if the record had showed Hammond held the assignment as attorney for Boggs & Kirk. It is true the record did not distinctly show that fact; yet we think it showed enough to have put the appellee on inquiry, and if so, inquiry thereupon became a duty. The exercise of common prudence and ordinary diligence, which he was bound to use, would have disclosed to him that Hammond held the assignment as attorney or counsel for Boggs & Kirk: Lodge v. Simonton, 2 P. & W. 439; Cresson v. Miller, 2 Watts 272; Jaques v. Weeks, 7 Id. 261; Walsh v. *248Stille, 2 Pars. 17; Hill v. Epley, 7 Casey 331. The release itself cannot be found, but the record entry recites “for value received, E. Hammond, Esq., releases from the lien of this judgment the real estate of Peter S. McCormick, but does not satisfy the judgment or any part thereof; see paper filed.” Thus the record not only shows the assignment to be for the benefit of Boggs & Kirk, but also that Hammond executed the release without any payment on the judgment. A release, by one who held the legal title only, which proclaimed no payment on the judgment, and presumptively no consideration to the use party, should have put the appellee on inquiry. The language oí the record gave sufficient notice of an implied breach of trust to make inquiry a duty. Failing to inquire, he must be affected by the facts which a due investigation would have disclosed. Those facts show Hammond was the attorney of Boggs & Kirk, that this release was a fraud on them; that it was made without their knowledge, and never ratified by them. The learned judge therefore erred in holding that the release, thus executed, discharged the lien.

Decree reversed, and record remitted, with instructions to decree distribution conformably with this opinion. It is further ordered that the appellee pay the costs of this appeal.