2 Ky. Op. 40 | Ky. Ct. App. | 1867
Opinion oe the Court by
At a judicial sale, made on the 10th of November, 1863, under a judgment of the Garrard Circuit Court, appellant purchased two adjoining tracts of land in said county, sold as the property of the heirs of Groomes Taylor, the one containing 199 A., 2 R., 26 poles, at the price of $30 and 12-100 per acre; the other containing 24 A. and 13 poles, at $65 per acre; and the master who made the sale gave him a certificate of his purchase. On that certificate there is an indorsement in the following words: “Por value received, I have this day assigned and transferred to Willard Davis the benefit of the within purchase, Aug. 22d, 1864. (Signed) William Pilant. By James Pilant, agent and attorney in fact.”
On the day said indorsement bears date the following orders, made in the Garrard Circuit Court, in the case of R. Kanatzer and others against Lucinda B. Taylor and others, the same case in which the judgment for the sale of said lands was made.
It appearing that W. H. Pilant, by his agent and attorney in fact, has transferred the benefit to his purchase of land reported by commissioner to Willard Davis, as evidenced by certificate filed, and indorsement thereon, and acknowledgment made in open court by James Pilant, the agent and attorney in fact of Wm. H. Pilant, of said sale and transfer, and it being admitted that said Davis has paid to commissioners the purchase money of the land, after crediting the mortgage, which is paid by Davis to W. H. Pilant’s agent and attorney in fact, the commissioner, G. W. Dunlap, is directed to make conveyance of the land aforesaid to said Davis, who thereupon acknowledged said deed in open court, which was examined, approved, and indorsed by the court, and ordered to be certified to the clerk of the Garrard County Court for record. Said commissioner is allowed $1.50 for maaking said deed, to be taxed in the costs, and the residue of. the‘cause is continued. The deed of the commissioner to Davis corresponds in
On the 24th of February, 1865, Davis conveyed to N. LI. Tuter the larger tract conveyed to him by the commissioner as aforesaid, in consideration of $7,960, payable in installments. Under the commissioner’s deed to him, Davis took possession of both tracts, and delivered possession to Tuter of the tract conveyed to him.
This equitable action was brought by Wm. H. Pilant against Davis, Tuter, and James Pilant, to set aside the conveyance of the commissioner to Davis, and of Davis to Tuter, and to have both tracts conveyed, and the possession surrendered to him, upon the alleged grounds that Davis, who had assumed to act as the attorney of “the plaintiff in the matter, improperly procured the defendant, James Pilant,” to transfer and assign to said Davis his said certificate as his agent and attorney, when he was not his agent, or attorney, and never was, and had not even a colorable authority to assign or transfer said certificate, or to sell said land. That said defendants, Davis and James Pilant, appeared in court, and by "wrongfully and untruthfully" representing to the court that the said plaintiff was dead, leaving issue, and that said James
The sale of the lands by the commissioner, the purchase by appellant, the execution of the certificate of purchase by the commissioner, are all admitted by Davis, and it is virtually admitted that James Pilant, who made the assignment of said certificate, had no authority or power to act for appellant, as his agent, or attorney in fact. But the grounds relied on by Davis to defeat the action are mainly that he believed James Pilant had the authority from his son to make the transfer; that there was some rumor in the county that appellant was dead; that he acted in the matter in good faith, and that appellant fails to charge in direct terms that the transaction was fraudulent by which he procured the deed to be made to him, and finally,' and principally, upon the order of court directing the deed to be made to Davis before referred, and the deed of the commissioner properly authenticated, stamped, etc. The Circuit Judge set aside the transfer to Davis, and ordered him to surrender possession of the 24 acres and 13 poles of land to W. H. Pilant, upon being paid the amount which he paid for the land over and above the amount of W. H. Pilant’s mortgage debt, with interest, and that he should be charged with rents and allowed nothing for improvements; adjudged Tuter an innocent purchaser, and confirmed the sale to him; but adjudged that Pilant was entitled to the price Tuter agreed to pay Davis for the land, and that he should pay the amount unpaid to him, and that the note given to Jas. Pilant by Davis be surrendered; and Davis and W. H. Pilant both appealed.
If it be admitted that James Pilant had authority from appellant to transfer the certificate of sale, or suppose appellant had done it himself, and it had been alleged, or it otherwise properly appeared in the record that Davis was his attorney in the case, and the connection still exists at the time of the alleged transfer, what would have been the result, even in that case, of a suit to set aside the sale and transfer ? Justice Story says, sec. 310, vol. 1,
Sec. 311. On the other hand, it is not necessary to establish that there has been fraud or imposition upon the client; and on the other hand, it is not necessarily void throughout, ipso fació. But the burden of establishing its perfect fairness, adequacy, and equity is thrown upon the attorney, upon the general rule that he who bargains in a matter of advantage with a person placing a confidence in him, is bound to show that a reasonable use has been made of that confidence, a rule applying equally to all persons standing in confidential relations with each other. If no such proof is established, courts of equity treat the case as one of constructive fraud, etc. And in the concluding sentence of sec. 312, 2 B, it is said: “Sales made and annuities granted to attorneys, under similar circumstances, will, upon the same principles of public policy, be set aside at least, unless they are established to have, been transacted uberrama fide.”
It is true that appellee Davis denies that he "assumed” to act as the attorney of appellant; but we understand from that that
But again the facts stated in appellee’s affidavit, all of which were admitted, are confirmatory, if confirmation were needed, of the existence of the connection of attorney and client between these parties at the time and after the transfer of the certificate of sale to him, in that he states that one Lawless will prove that he heard appellant say that he had authorized his father, said James Pilant, to employ him, said Davis, as his attorney at law to foreclose the mortgage on the land in contest, and collect the mortgage debt. This authority to his father, according to appel
The residue of the affidavit relates to the then reputed death of appellant, and it is not improbable that that rumor was the source of these troubles; but be that as it may, the evidence puts it beyond all controversy that the relation of attorney and client subsisted between the parties, when the transfer aforesaid was made, and as appellee Davis has failed to show that the transaction was perfectly fair and equitable, and the price paid or promised adequate, it cannot stand.
It was not necessary that it should be alleged in the petition that the transaction was fraudulent; when the facts, as in this case, are established, courts of equity treat them as amounting to constructive fraud.
Nor can the transfer to Davis be sustained on the ground that James Pilant represented himself as the agent or attorney of his son; he knew that the son lived in Louisiana, had not been in Kentucky during the time the suit was progressing, and if his father had any agency further than to engage his services, i it would have been most probably evidenced by a letter; no such letter is shown, and the existence of any such agency is repelled by the fact that Davis swore to the claim of young Pilant, bought the land, and executed notes for it in the presence of the father, for it is proved that he was present at the sale. And it further appears that Davis was not only the attorney at law for the son, but was also attorney for the father.
It remains now to examine what is Tuter’s position in the controversy. If it be conceded that, having obtained the legal title, although all the purchase money was not paid, that. he was, according to the legal and technical meaning of the term, a purchaser, still is he an innocent purchaser without notice of appellant’s equity. By reference to the deed from the commissioner to Davis, his vendor, he would have learned that the land had been sold by a commissioner, under a judgment of the Garrard Circuit Court, and that, although Wm. H. Pilant'had purchased at that sale, and received from the commissioner a certificate of his purchase, still he would have also learned that said certificate and the benefit of the purchase had been transferred to his vendor by
Having ascertained these facts, he might well have stopped his inquiries, and for failing to go beyond the judgment of the court to examine into the power of James Pilant to make the transfer, to preclude him from the condition of an innocent purchaser, would be unreasonable. We therefore approve the judgment below, confirming the sale to Tuter, and ordering him to pay the residue of the purchase money owing by him for the land to appellant, and of the judgment against Davis for the amount which he had received from Tuter. And we also approve the judgment setting aside the conveyance to Davis, and ordering a surrender of the 24 acres and 13 poles of land retained by Davis to appellant. We also approve the principles upon which the accounts between the parties were ordered to be settled, except that Davis should be allowed so much for his improvements on the 24 acres and 13 poles as the same shall have enhanced the value of the tract at the time of the assessment, and for a refusal to allow him therefor alone the judgment is reversed, and the cause remanded, to have the value of said ameliorations ascertained, and for further proceedings consistent herewith. In all other respects the judgment is affirmed, and Davis and Pilant pay their own costs, and Tuter recover his costs of appellant Pilant.