55 So. 603 | Ala. | 1911
This case on former appeal is reported in 164 Ala. 353, 51 South. 522. It was there held that the bill was without equity, and the demurrer for want of equity was sustained, but there was no formal decree of this court dismissing the bill; the cause being remanded to the lower court.
As we understand the amendment to the bill, it does not attack the decree of the probate court for fraud ; for, while it sets up fraudulent acts and omissions on the part of respondent, Brainard, in and about the defense and prosecution of the probate proceeding, it does not charge the beneficiaries, under said decree, or the parties to the cause, with such conduct as would vacate the decree for fraud. It does aver, however, that the respondent Brainard, while still the attorney and trustee for the complainants, purchased the subject of the litigation (the land) for a. sum greatly less than its value', and that said purchase should inure to the benefit of his clients, these complainants.
It can be safely stated as a sound and salutary legal principle that, so long as the relationship of client and attorney exists, the attorney is a trustee for his client in and about the cause or the subject thereof, and any trade that he makes or benefits he may derive, resulting from the litigation or a sale of the subject of the litigation, will inure to the benefit of the client, the cestui que trust. This is a rule so wholesome and just that citation of authority is needless, and it would be difficult to find an authority holding to the contrary. The amended bill avers that Brainard was the attorney of the complainants up to and at the time of the purchase of the land by Parker, and that Parker was in fact acting for and in behalf of Brainard.
It has been suggested in brief of counsel that Jury Fritz, who was interested in the estate of Singo, but
It is next insisted that the error of the city court in sustaining the demurrer to the amended bill can be tolled upon the theory that the amendment was not properly allowed, that the previous decree of this court in sustaining the demurrer for want of equity operated ipso facto as a dismissal of the bill, and that it could not be amended after remandment. It is needless for us to enter into the discussion of a distinction between a motion to dismiss for the want of equity and a general demurrer for want of equity, or to imagine all that was in the legislative mind when malting the change in the statute as it appears — section 3121 of the Code of 1907. For a discussion of this subject, we refer to chapter 15, Sims’ Chancery Practice, which is not only interesting- and instructive, but can be read with profit by the
It has been suggested that to permit amendments, after sustaining a demurrer settling the equities of a bill, will tend to prolong and protract litigation. As to this apprehension, we are not concerned, as it is our duty to construe and not legislate. Moreover, the courts will no doubt wisely guard against abuses of the statute of amendments, and the case will no doubt be rare when a complainant will inject into the original bill new facts, by way of amendment, which do not exist and which cannot be proven, simply to give his bill equity, and occasional delays are far preferable to a denial of equity and justice.
The more recent decisions of our court (Turner v. City of Mobile, 135 Ala. 73, 33 South. 132, and many others) invoked the rule of always dismissing the bill after sustaining a motion to dismiss for want of equity, thus cutting off all opportunity for the operation of section 3126, as to the amendment of said bill, and it is evident that the Code committee, with this line of decisions in mind, desired to relax to some extent this rigorous method, by substituting a general demurrer and giving the courts some latitude to permit the operation of section 3126, even in cases where the general demurrer had been sustained for want of equity, and espe
As to when the sustaining of a general demurrer for want of equity should or should not be followed up with a final decree dismissing the bill of complaint, we need not decide until the exact question is presented; but it is safe to say that, in view of the change made in the statute, from a motion to dismiss, to a demurrer for want of equity, and the further fact that section 3126 and chancery rules 41 and 42 (32 South, iv) contemplate a liberal policy as to the amendment of bills, the complainant should be given an opportunity to amend his bill before dismissing same. It is true that in passing upon the general demurrer, as formerly upon a motion to dismiss for want of equity, amendable defects should be considered as made, but this presump
The city court erred in sustaining the demurrers to the amended bill, and the decree must be reversed, and one is here rendered overruling same, and the cause is remanded.
Reversed, rendered, and remanded.