Yonge v. Hooper, 73 Ala. 119

73 Ala. 119 | Ala. | 1882

STONE, J.

— The decree of dismissal, in this case, ivas rendered in vacation, is absolute in its terms, and reserves to the appellant no right of amendment. For this re'ason it must be reversed. — Kingsbury v. Milner, 69 Ala. 502; Bishop v. Wood, 59 Ala, 253.

Attorney and client sustain to each other the severe relation of trustee and cestui qua trust, and their dealings together are subject to the same intendments and imputations, as those which obtain between other trustees and their beneficiaries. When a conveyance is made by the beneficiary to the trustee, or a judgment confessed by the former to the latter, in the absence of explanation the intendment is, that the conveyance or judgment was obtained by undue influence, and the burden rests on the trustee to repel such imputation. — Thompson v. Lee, 31 Ala. 292; Calloway v. Gilmer, 36 Ala. 354; Ferguson v. Lowery, 54 Ala. 510; Waddell v. Lanier, 62 Ala. 347. We cite the following - authorities, without intending to adopt the extreme viewrs expressed in some of them. We will state hereafter the extent to which they are-to be followed. — Draper's Co. v. Davis, 2 Atk. 295; Wood v. Downes, 13 Ves. 120; 1 Perry on Trusts, § 203; Starr v. Vanderheyden, 9 Johns. 253; Merritt v. Lambert, 10 Paige, 352; DeRose v. Fay, 4 Edw. Ch. 40.

The bill in the present case, as amended, is defective in- several particulars. It does not contain a denial that Mrs. Yon'ge executed the two notes and the mortgage on which the decree was rendered, which this bill seéks to vacate. Its language is, “ It may be that the name of your pratrix, in her own handwriting, may be subscribed to said pretended notes of date September 10th, 1872, and the like pretended mortgage of same date.” It adds: “ If such is the case, her said signature was only obtained by the dictation, direction and control of her said husband, at- their own house and alone, and without her knowledge as to what the papers wére, or imported to be, and without the presence of any witness. That it was the custom of her husband, whenever he wished her to do or sign any thing, to say to her, ‘ do this, or sign this; ’ and it was ecpially her custom, in obedience fo the unquestioned and unquestionable control he had and exercised over her, to do and sign whatever he bade.” The bill charges no wrong or fraud practiced by Mr. Yonge on his wife, the complainant, and does not negative the idea that he was her trustee. It clearly shows that he managed and controlled her property and the litigation concerning it, and that she acquiesced in this, with unquestioning trust and confidence. There can be no question that, under this state of facts, her signatures to the papers are as binding on her, as if the papers had been fully explained to her. It was her own fault, if having such confidence in her husband, she executed the papers without knowing their contents. No active participation is charged on the Hoopers, in procuring these signatures, and, as we have said, no fraud is charged on the husband. Gœtter v. Pickett, 61 Ala. 387. Then, this transaction must be treated, as if Mrs. Yonge voluntarily executed the notes, knowing their contents. If Mr. Yonge employed the Hoopers to represent the interests of his wife, in litigation concerning her property, and she gave her notes to secure the fee, it follows that, having an equitable separate estate, such notes are prima facie a charge upon such separate estate. — 2 Brick. Dig. 86-7. ■

A notable defect in this bill is, that it nowhere denies that the professional services, impliedly admitted to have been the consideration of the notes, were rendered by the Hoopers, or that they were reasonably worth the sum charged. A complainant, in such a case as this, must show the decree obtained was inequitable, or he has no standing in court. — Secor v. Woodward, 8 Ala, 500; Crafts v. Dexter, Ib. 767: Givens v. Tidmore, Ib. 745; 1 Brick. Dig. 666, § 376; Freeman on Judg. § 516. The present case must be determined on precisely the same principles, as if the decree was against Mr. Yonge, seeking to subject his property to its payment.

For all equitable purposes, the decree obtained in 1875, under which the lands were sold in 1876, must be treated as a confessed judgment. According to the averments of the bill, the answer of the defendants and the consent for decree were drawn by the defendants, while the relation of attorney and client existed between them, and at a time when they were engaged in active professional duties in defending Mrs. Yonge’s property. If this be so, then the law will not sanction such transaction beyond a fair and reasonable compensation for the services rendered by them for her. If the sum claimed and decreed is too large, this, on proper pleadings and proof, will make it proper to open the decree and set aside the sale, holding it good only as a security for the sum ascertained to' be due, the onus being on the Hoopers to prove the reasonableness of the charge, or charges.

This is not a bill of review. It is a bill to set aside a confessed judgment, or rather decree, on the alleged ground that the trust and confidence the relation imposed, have been abused. The complainant avers that she was ignorant of the decree, and of the sale under it, until a very short time before this bill was filed. We will not pronounce on the question of lapse of time, or staleness.

Reversed and remanded.