Mott v. Harrington

12 Vt. 199 | Vt. | 1840

The opinion of the court was delivered by

Bennett, Chancellor.

— The bill in this case is predicated upon the ground that the deed from the orator to the defendant, though absolute upon the face of it, is to be regarded as a mortgage, and the orator’s object in bringing this suit, is, to be let in to redeem. Is this view of the subject sustained by the evidence, and is the plaintiff entitled to redeem ? The deed, it is true, bears date the 4th of May, 1832, and the date of its acknowledgment is the 5th, and the bond, wherein the defendant is bound to convey the premises to the orator, bears date the 6th of May. Tabor Sewell, one of the witnesses to the deed, ahd the justice who took the acknowledgment of it, testifies, that, at that time, he understood from both of the parties that the deed was given to secure the defendant for his costs, trouble and expense in prosecuting certain suits in favor of the orator against J. M. and D. Mott; and that he has but a faint recollection of a bond being given at the same time. The condition of the bond we find to be, that the defendant shall re-convey the premises to the plaintiff, upon being paid .his claims for fees and moneys paid out, &c. in the same suits, and the bond is witnessed by the same persons who were present and witnessed the deed.. It is alleged, in the bill, that they were executed at one and the same time, and this is not denied in the answer, but the defendant says they were executed bearing certain dates. This is not swearing that they were not, in fact, executed at one and the same. time.

From a careful examination of the whole testimony in the case, from the tenor of the condition of the bond and the nature of the transaction, we are satisfied that the conveyance by the orator and the agreement to re-convey by the defendant, were made at one and the same time, and that they are parts of one transaction, and that the bond, though of a different date, was executed at the same time. The orator’s deed, then, is most deafly, in chancery, to be treated as a mortgage and he is entitled to redeem. It is however insisted, by the defendant, that, at all events, he is not entitled to redeem but one moiety of the premises.

The agreement set forth in the defendant’s answer, that after being paid a reasonable compensation for his services and moneys paid out, he was also to have one half of the lands which should be recovered in the suits which he should institute for the orator, is not, I think, responsive to the bill, and is not proved by other evidence in the case. But if it were, we are all agreed that it could not avail the defendant. The settlement was made with Danford Mott, in regard to lots No. 49, 50 and 51, on the third of May, 1832, and a quitclaim deed executed to the orator one day before the deed was given to the defendant.

Any prior agreement that might have existed between the parties, in regard to the defendant’s being entitled to one half of the lands which should be recovered, would have been merged in his bond to re-convey, and cannot be set up to excuse him from fulfiling the condition thereof. Besides, the contract, set forth in the defendant’s answer, is such an one as could not be enforced. Transactions between solicitor and client are always scrutinized with a jealous eye, and a court of equity will not suffer a solicitor to take a security from his client, pending a suit, for a single shilling by way of gratuity, however reasonable this might be in many cases. Saunderson v. Glass, 2 Atk. R. 297. In the case of Wood v. Downes, 18 Ves. 120, it was held that beneficial contracts and conveyances obtained by an attorney from his client, during their relation as such, and connected with the subject of the suit, should stand as a security only for what was actually due. So in Hylton v. Hylton, 2 Vesey, Sen. 547, it is laid down as clear law, that no attorney can take any thing from his client, pending the suit, save his demand. The orator is, then, most manifestly entitled to be let in to redeem the whole premises. It becomes necessary that an account should be taken, to ascertain the sum due the defendant, and the court accordingly send the case to a master for that purpose, and, upon the coming in of the report, the court will pronounce a final decree, and upon such terms, as to costs, as they shall then think reasonable.