Healy v. Gray

• Decision Date: 01 July 1918
• Docket Number: 32092
• Citation: 168 N.W. 222,184 Iowa 111
• Parties: FRANK HEALY et al., Appellees, v. W. E. GRAY et al., Appellants
• Court: Iowa Supreme Court

168 N.W. 222

184 Iowa 111

FRANK HEALY et al., Appellees, v. W. E. GRAY et al., Appellants

No. 32092

Supreme Court of Iowa, Des Moines

July 1, 1918

Appeal from Calhoun District Court.--M. E. HUTCHISON, Judge.

SUIT to declare a trust in real property. The facts are fully stated in the opinion.

Affirmed.

S. A Frick and Gray & Gray, for appellants.

J. F Lavender and Kenyon, Kelleher, Price & Hanson, for appellees.

STEVENS J. PRESTON, C. J., WEAVER and GAYNOR, JJ., concur.

OPINION

STEVENS, J.

Plaintiffs are the sons and daughters and heirs at law of Charles I. Healy, who died intestate in Calhoun County, Iowa, seized of the NE 1/4 of the SW 1/4 of Section 25, Township 87, Range 32, in said county. Prior to and on June 19, 1888, Ada M. Healy, the deceased wife of Charles I. Healy, held the legal title to the N 1/2 of the SE 1/4 of the section, township, and range aforesaid. All of said real estate was sold at sheriff's sale and, on June 19, 1888, a sheriff's deed, conveying said premises to Isaac Cole, who resided at Sidney, Illinois, was executed. A few days prior thereto, Ada M. and Charles I. Healy conveyed the same to Cole, by quitclaim deed, for an expressed consideration of $ 1,975. Cole was an uncle of Charles I. Healy's, and he furnished the money and took up the sheriff's certificate of purchase for the evident purpose of preventing the execution of a sheriff's deed to a stranger. The improvements were all on the 40-acre tract, but the Healys continued to occupy and cultivate the whole farm of 120 acres until the death of Charles I. Healy, which occurred about two years after the death of his wife. Cole and wife reconveyed the 40-acre tract to Charles I. Healy in May, 1911, for the expressed consideration of $ 1.00. Cole paid the Healys nothing for the quitclaim deed executed to him in 1888; but the indebtedness against the land, represented by the certificate of purchase, together with some small items of expense incurred by Cole, amounted to $ 1.975. During the first eight years following the execution of the sheriff's deed to Cole, the Healys occupied the premises without paying rent therefor; but thereafter, $ 200 per year was paid to Cole as rental. Several written leases between the parties were offered in evidence. Cole paid the annual taxes, and also some ditch taxes. The same rent was paid for the 80 after the 40 was reconveyed to the Healys as before.

After the death of Charles I. Healy, and on October 29, 1915, Frank Healy wrote a letter to Isaac Cole, advising him of his father's death and inquiring as to the arrangement regarding the 80-acre tract. Cole replied that he would accept $ 100 per acre for the land, but made no reference to the title thereto. Prior to the receipt of the letter from Cole, Frank Healy employed appellants, who are attorneys at law, to procure his appointment as administrator for his father's estate. The petition for that purpose was prepared by the junior member of the firm. On the following day, Frank Healy received, and went to the office of appellants with, the Cole letter. This suit was instituted for the purpose of having the legal title to said land, which is held by appellants, decreed to be in trust for plaintiffs, and to require appellants to convey same to them. The court granted the prayer of their petition.

Only Frank Healy and R. C. Gray were present when appellants prepared the petition for his appointment as administrator of his father's estate. Frank Healy testified that he then told R. C. Gray all he knew about the land in controversy, and that he had written a letter to Isaac Cole inquiring what Cole had against it, or what claim he made thereto; and promised to bring his reply to the office, as soon as received. Mr. Gray, according to Healy, said, in reply:

"We will look after that, in time. We can go ahead and fix up the administration papers, and that can be attended to later on."

This conversation is denied by Gray, but Frank also testified to a conversation with W. E. Gray, as follows:

"My first talk was with W. E. Gray, on the street. I told him of father's death, that the children wanted me appointed as administrator, and he says, 'All right, we will fix it up,--you should be.' I told him I wanted him to act as my attorney in the administration. This was probably a week before I was appointed. The next time, I went up into their office."

This conversation also is denied by Gray.

Upon receipt of the letter from Cole, Frank went at once to Rockwell City, where he met R. C. Gray in a restaurant, and gave him the letter. A little later in the evening, he went to appellant's office, where he had a conversation with W. E. Gray, in the presence of the members of the firm, and, appellants claim, in the presence of a client whom they had met at the office by appointment. Frank Healy did not remember definitely whether anyone but the members of the firm was present. The evidence is in conflict as to what occurred on this occasion. Frank testified, in substance, as follows:

"When I received the above letter. I took it to Mr. Gray. I handed it to him, and he read it. He says, 'What are you going to do?' I says, 'I am going to try to get that land back;' and he made a proposition to go in with me and buy it back. I didn't accept it. He says, 'You had better attend to this matter right away: somebody will pick it up.' I says, 'How is it going to get out? Me and my wife and you are the only three that knows it.'"

Upon cross-examination, he stated that W. E. Gray inquired whether the heirs could purchase the land, and that he replied that he did not know until he could see or write to his brothers and sisters; that he would do so, and find out. W. E. Gray, whose testimony is corroborated by the other witnesses present, testified that Frank said:

"I am badly disappointed. I got a letter from Mr. Cole, which shows that father never had any interest in that land."

He further testified that he then suggested to Healy that the proposition looked good to him, and asked him why he did not buy the land; that Healy replied that neither himself nor the rest of the family could buy it; that he then suggested that, if none of them could buy it, he would buy it himself; and that Frank said, "All right."

It should be stated in this connection that the letter from Cole contained no reference whatever to the title to the land, or to Charles I. Healy's interest therein.

The decision of this case turns upon the question whether the relation of attorney and client existed between the parties hereto regarding the subject-matter of the litigation at the time appellants purchased the land, thereby forbidding them to deal therewith for their own benefit and profit. The employment of appellants by Frank Healy to procure his appointment as administrator is conceded by appellants, but they seek to limit the scope thereof to that purpose only. R. C. Gray admits that no list of heirs or real estate was filed at the time of Frank's appointment as administrator, but denies the statement attributed to him by Frank. The record as to the details of the conversation between them is somewhat meagre. No retainer was demanded by Gray, or paid by Healy, nor does it appear that the scope of appellants' employment was in any way discussed. While the relation of attorney and client rests upon contract, it is not necessary that any particular formalities be observed in relation thereto, or that a retainer be demanded or paid. The contract may be implied from the conduct of the parties. Keenan v. Scott, 64 W.Va. 137 (61 S.E. 806).

It is not claimed on behalf of appellees that a definite agreement was entered into between them, by which appellants were employed to represent them in any possible litigation between the Healys and Cole affecting the title to the land in question. The only purpose Frank Healy could have had, however, in going with the letter to the office of appellants, was to communicate to them what he had learned concerning the matter, and to consult them as to the better course to pursue. Appellants must have understood, from the beginning, that the Healys believed their father died seized of an interest in the land, and that they were ignorant as to the nature or extent thereof.

Frank testified that W. E. Gray told him, in a conversation before the father's death, that he had urged the latter to have the title to the 80 fixed up. Gray denied this conversation. The conversation on the evening of November 9th, as appears from the testimony of the parties present, related almost entirely to the purchase of the land, except that Frank Healy claims to have stated that he intended trying to get the land back. The price quoted by Cole was $ 60 to $ 70 per acre less than the fair market value of the land. Appellees were compelled to rely entirely upon circumstantial evidence, to impeach Cole's title thereto. No definite course of procedure was considered or discussed, except that appellants claim that Frank said it was all right for them to buy the land. That the relation of attorney and client existed between Frank Healy, as administrator, and appellants, at the time in question, admits of no controversy. He probably did not, technically, distinguish between his relation as administrator to the personal and real estate, nor does it appear that he was informed by appellants that, as administrator, he would have nothing to do with the farm. Frank Healy further testified that he procured the appointment of administrator in accordance with an agreement between himself and his brothers and sisters, that he would look after the estate. He evidently understood that appellants would represent him in matters pertaining to the estate, and doubtless appellants similarly...