Mills v. Mills

26 Conn. 213 | Conn. | 1857

Ellsworth, J.

We are all satisfied that the petitioner is entitled to redeem. Whether we consider the true nature of the transaction of the 20th of July, 1841, (the date of the deed in question) or the then relations of the parties, one the client and the other the attorney, or the writing of the 21st of July, we come to the same conclusion, that the deed of Whalley can be considered only as a mortgage, and that the land is still open to redemption.

It appears that Whalley was about to embark in a lawsuit which involved his title to this piece of land, and applied to Mr. Mills to assist him with his professional and other services, and gave him a deed of the land for that purpose.

Now an absolute deed given, under such circumstances, were there nothing else, would be open to much question and doubt, and unless it could be shown that the client had a clear understanding of the nature and effect of his deed, and received a fair consideration for the conveyance, it would be difficult to uphold the transaction, however upright it might be in fact, without overruling many of the cases in the equity books.

If the transaction of the 20th of July, was indeed a sale, as it is claimed to be by the respondent, we are constrained to enquire what was the amount of the consideration paid by Mr. Mills ? This should be reasonably certain and definite, much more so than it appears to be at present. But it was not a sale, and was not so understood to be by Whalley the grantor. This is evident if we look at the parol condition which was put into writing the next day, and made part of the conveyance. This writing declared that the land was conveyed as security for future contingent expenses and a loan of $50. When did this security cease to be such and the sale become an absolute one? “Once a mortgage always a mortgage,” is a well known maxim, and why does it' not apply to this case ?

But it is said that the arrangement of April, 1845, was one which discharged the right of redemption, and rendered the conveyance an absolute and irredeemable grant. We do not so regard it. At that time Whalley returned for a few days to Norfolk, from the state of New York, where he then resided, and while there called on Mr. Mills, to make some enquiries about his account in the matter of the lawsuit. At this interview Mr. Mills paid him $10 to get up the conditional writing of the 21st of July. The report states that Mr. Mills supposed and believed that it was understood between them that the $10 settled the whole affair, but it does not state that Whalley understood it so, nor on what grounds Mr. Mills had a right to believe as he did. The writing has never been given up in fact, nor the equity, if there was any, released or extinguished. Whalley seems to have been an inferior man, of foreign birth and of little knowledge, (for he could not write his name,) and to have had but little experience in business of this kind, and we can not believe that he has intended at any time to change the character of his first conveyance, and extinguish his equity to redeem the property in question.

There are no transactions respecting which courts of equity are more jealous and particular, than dealings between attorneys and their clients, especially where there is great intellectual inequality, and comparative inexperience on the part of the latter.

We are quite satisfied on the whole with the conclusion to which we have come, that the petitioner has made out his case and is entitled to the relief he asks for.

We cite, in support of our views, two cases from our reports which we do not recollect to have heard mentioned in the argument at the bar. Bacon v. Brown, 17 Conn., 29, and Jarvis v. Woodruff, 22 id., 548.

In this opinion the other judges concurred.

Judgment for petitioner advised.