Burch v. Nicholas

• Decision Date: 31 May 1904
• Citation: 80 S.W. 1132
• Parties: BURCH v. NICHOLAS et al.
• Court: Kentucky Court of Appeals

80 S.W. 1132

BURCH v. NICHOLAS et al.

Court of Appeals of Kentucky.

May 31, 1904

Appeal from Circuit Court, Jefferson County, Chancery Division.

"Not to be officially reported."

Action by Emma Nicholas and others against Virginia Burch. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

W. T Burch, for appellant.

Gardner & Moxley, for appellees.

HOBSON J.

On August 25, 1900, Emma Nicholas and her husband conveyed to Virginia Burch, in consideration, as recited in the deed, of $110 cash in hand paid and $350 to be thereafter paid, to Rosa Ostreicher, a house and lot in Louisville conveyed to Emma Nicholas by Rosa Ostreicher on December 2, 1899. Nicholas and wife, on November 8, 1901, filed this suit against Virginia Burch to have the deed declared a mortgage and the court having so adjudged, she appeals. The proof shows that W. T. Burch, the husband of appellant, is an attorney at law, and as such had represented the husband of Emma Nicholas in some legal proceedings previous to her purchase of the property in contest from Rosa Ostreicher, and he was the attorney of Emma Nicholas in the purchase of the property and in the making of a payment on it after the purchase. She contends that he continued her attorney throughout. He contends that the relation of attorney and client had ceased before the deed to his wife was made, and that the transaction with her was deliberately had and fully understood. While we do not doubt the sincerity of the testimony of Burch or his wife, we think the chancellor properly, under all the facts and circumstances, adjudged the deed to be a mortgage. Emma Nicholas and her husband are negroes. Neither of them can read or write. Neither of them appears really to have understood in fact the transaction. They had bought the property for $650, and it was worth something more than that. They evidently regarded Mr. Burch as their attorney, although he thought the relationship had ended; and, in view of all the circumstances and the ignorance of Nicholas and his wife the chancellor properly refused to hold the deed an absolute conveyance of the property. It is the policy of the court to relieve against contracts made by a person with an attorney where the confidence induced by the relation of attorney and client probably threw a party off his guard, and thus induced him to make a contract which he did not really understand and would not otherwise have...