27 Kan. 195 | Kan. | 1882
The opinion of the court was delivered by
It appears from the record in this case, that on April 24, 1857, Samuel P. Woods, the grantor of plaintiff, settled and filed his preemption claim on a tract of land in section 14, range 25, township 11, in Wyandotte county, containing about eighty acres, and being a part of the lands in controversy; that on July 13, 1857, the United States conveyed by patent to Silas Armstrong this land, together with certain other lands, all known as “ Wyandotte Reserve No. 1,” lying north of the Shawnee reserve, between the Kaw and the Missouri rivers and the line between the states of Kansas and Missouri. At the date of this patent there were several other settlers upon the lands described in the patent besides Samuel P. Woods, and among the setr 'tiers were David E. James and George B. Wood. Some litigation had arisen, or was about to arise, between the settlers claiming under the preemption laws of the United States and the patentee, Silas Armstrong. Therefore, on July 8, 1858, Samuel P. Woods, George B. Wood and five other settlers employed David E. James as their attorney to defend their interests in the land, and united in giving to said David E. James a written power of authority authorizing him to litigate, defend, settle or compromise the questions of title between said settlers and all other parties; and under such power of attorney said Samuel P. Woods, and each of the other settlers, authorized said David E. James to litigate, settle or compromise their respective rights to'said lands with Armstrong. Afterward, on September 11, 1858, Samuel P. Woods and wife, by their quitclaim deed of that date, conveyed to Luther H. Wood all their rights, title, interest and estate to the lands in said Wyandotte reserve settled and filed upon by
“For value received, I do hereby assign, transfer and set over to David E. James all my right, title and interest to the within deed of quitclaim.— Luther H. Wood,”
And delivered the same to David E. James. In consideration of th'e said conveyance to Luther H. Wood, Samuel P. Woods received from Luther H. Wood two notes, made by the latter in favor of the former, for '$500 each; and for the crop upon the land, a wagon. After this conveyance, Samuel P. Woods-delivered over possession of the premises and crop to Luther H. Wood, abandoned the lands, left Wyandotte county and moved to Miami county, where he has lived since, and where he was living at the trial of the action in the court below. The notes that Samuel P. Woods received for the conveyance he transferred to one J. J. Park, for stock. Park afterward brought an action against Luther H. Wood to recover upon these notes. Wood pleaded a failure of consideration — that Samuel P. Woods had no title to the land for which the notes were given; and that Woods had failed to make a subsequent deed to such land, according to promise at the execution of the notes. It is difficult to tell what was the result of the action upon the notes; but Luther H. Wood testified that he never paid them.
Upon July 18, 1859, David E. James made a compromise with Silas Armstrong as to the Wyandotte reserve No. 1, which embraced the lands filed upon by Samuel P. Woods. The contract was in writing, and in it said James agreed, in behalf of himself and the parties who signed the said power of attorney, to surrender to said Armstrong the possession of the lands claimed by such parties, and to release and quitclaim to him all of his and their right, title and interest thereto.
Counsel for plaintiff contends upon these facts, that his client is entitled to the equitable relief demanded in her petition, and such claim is based upon the propositions that David E. James became the attorney and confidential adviser of Samuel P. Woods; that while the relation of attorney and client existed between them, James could neither directly nor indirectly purchase of his client the subject-matter of such attorneyship to his private gain; that therefore the conveyance of September 11, 1858, from Samuel P. Woods and wife to Luther H. Wood, then actitag for James and another party, was fraudulent and void, if said James intended to purchase through Luther H. Wood of his client an interest in the subject-matter of his attorneyship for his own benefit. On the other hand, if James was acting in good faith to his client, Samuel P. Woods, in respect to the subject-matter arising out of the relation of attorney and client, the law presumes that in taking the transfer from Luther H. Wood, he was acting to protect the interest of his client, Samuel P. Woods, and therefore purchased -such interest for his client and not for his own private gain; that James obtained the compromise with Armstrong for the benefit of Samuel P. Woods, and not for himself, and therefore up to the time of his death held the legal title of the premises in controversy, as trustee for Samuel P. Woods; that plaintiff, by the conveyance to her of January 29, 1874, succeeded to the title, interest and estate of Samuel P. Woods, and therefore was
First, That if James purchased of his client through Luther H. Wood the land in controversy, then his purchase was void, because such act was a manifest violation of good faith, and such a fraud upon his client that the transaction cannot be upheld.
Second, That as the law- does not presume a party guilty of fraud, or that an attorney would take advantage of his relationship with his client to advance his own interest, it must be presumed that James in all his transactions with Luther H. Wood and Silas Armstrong, after the date of the execution of the power of attorney of July 8, 1858, was acting solely as the attorney and agent of Samuel P. Woods, and acquired title to himself as trustee for Woods. Counsel says that this latter position is further strengthened by the fact that at the date of the compromise of July 18, 1859, the instrument drawn by himself recites that he was then acting as the attorney and agent of Woods, and that Woods then claimed an interest in the land. Counsel in this connection also calls attention to the fact that the notes executed by. Luther H. Wood for the conveyance from Samuel P. Woods were never paid, and claims that such conveyance was therefore without any consideration.
Counsel for plaintiff asserts that David E. James took the transfer and possession of the property from Luther H. Wood as attorney and agent for Samuel P. Woods, and was merely
Again, it is a very significant fact that Samuel P. Woods, after surrendering the possession of the property under the conveyance of September 11, 1858, never made any com- • plaint of the transactions of David E. James, never in his lifetime questioned his possession of ownership, and although •living not very many miles from the property, and knowing that it was becoming of great value as a part of a large city, never made any claim thereto during the life of James, or called him to account for any of the proceeds of such lands. The conduct of Samuel P. Woods after the execution of the
We have referred thus fully to the testimony disclosed upon the trial, in regard to the merits of the case, because with the views entertained by us of the law, the consideration of the alleged errors, which are at all debatable, becomes of less importance. Many of the alleged errors are wholly without merit. For instance, the objection made to the court sending the issues to the jury for trial is untenable. (Code, §267, Hixon v. George, 18 Kas. 253.)
The complaint of the overruling of the demurrer of plaintiff to the fifth defense is trivial, as plaintiff afterward filed a reply to the whole answer, and no proof was offered, or
Again, the exception to the charge of the court, being a general one, is not available, as the whole charge was not erroneous, nor was it in its general scope or meaning erroneous. (Sumner v. Blair, 9 Kas. 521.) The court gave thirteen of the instructions asked for by plaintiff, and refused several others. In our opinion, one or two of these, relating to the rule which throws upon the attorney dealing with his client the burden of proving the fairness of the transaction, ought to have been allowed, but the special -findings of the jury amply establish the proposition that such error was not prejudicial to the rights of the plaintiff. So, also, in our examination of the record, we find no material error in the admission or rejection of evidence, or in the other rulings of the court.
After an examination of all the record, we do not perceive that any substantial right of the plaintiff below, has been affected, and therefore we think upon the whole record, the judgment of the district court must be affirmed.