Smith v. Brotherline

• Decision Date: 05 May 1870
• Citation: 62 Pa. 461
• Parties: Smith <I>et al. versus</I> Brotherline.
• Court: Pennsylvania Supreme Court

62 Pa. 461

Smith et al. versus Brotherline.

Supreme Court of Pennsylvania.

October 25, 1869.

May 5, 1870.

October 25th 1869.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Cambria county: No. 135, to October and November Term 1868.

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G. M. Reade, for plaintiffs in error.—Brotherline was estopped by his acts: 1 Greenl. on Evid., § 207; McKelvy v. Tinley, 4 W. & S. 323; Commonwealth v. Moltz, 10 Barr 530; Elder v. Reel, antea, p. 307; Fulton v. Moore, 1 Casey 468; Maple v. Kussart, 3 P. F. Smith 348; Millinger v. Sorg, 5 Id. 215; Hallett v. Collins, 10 How. 174. Such acts estop, whether intentional or innocent: Cornish v. Abingdon, 4 H. & N. 556. The possession of land is notice of every title under which the occupant claims: Krider v. Lafferty, 1 Whart. 303; Woods v. Farmere, 7 Watts 382; McColloch v. Cowher, 5 W. & S. 427; Green v. Drinker, 7 Id. 440; Hood v. Fahnestock, 1 Barr 470; Kerr v. Day, 2 Harris 112.

Inaccuracy of statement of fact by the court to the jury is ground for reversal: Brown v. Clark, 2 Harris 469; Walker v. Humbert, 5 P. F. Smith 407. Smith was in possession, and Brotherline had notice of the fact. Smith's title was therefore good against him: Rowland v. Long, 1 Harris 464. Brotherline was not entitled to have a tender of the money paid him; he had deceived Smith: Hockenbury v. Carlisle, 5 W. & S. 348; Beaupland v. McKeen, 4 Casey 124; Leisenring v. Black, 5 Watts 303; Eberts v. Eberts, 5 P. F. Smith 110; 1 Story's Eq. Jur., § 218; Hill on Trustees 160. The defendants could not tender, because they did not know what was the agreement with Hoffman, nor how much land lay in Cambria county. The verdict refers to no natural boundary, nor to a monument, &c. The verdict was too uncertain: Smith v. Jenks, 10 S. R. 153; Martin v. Martin, 17 Id. 431; Stewart v. Speer, 5 Watts 79; O'Keson v. Silverthorn, 7 W. & S. 246; Harrisburg v. Crangle, 3 Id. 460; Hunt v. McFarland, 2 Wright 69.

R. S. Johnson, for defendant in error.—As to tender: Galbraith v. Elder, 8 Watts 81; Cleavinger v. Reimar, 3 W. & S. 486; Henry v. Raiman, 1 Casey 354. The locality of the county line was properly submitted to the jury; Kinley v. Crane, 10 Casey 146; Hecker v. Sterling, 12 Id. 423. The verdict was sufficiently certain: Santee v. Keister, 6 Binney 36; Green v. Watrous, 17 S. & R. 393; Tyson v. Passmore, 7 Barr 273; Ewing v. Alcorn, 4 Wright 492; Miller v. Casselberry, 11 Id. 376.

The opinion of the court was delivered, May 5th 1870, by SHARSWOOD, J.

The principle of law invoked by the plaintiffs in error is happily settled and clear above and beyond all contention. A counsel or attorney, employed and consulted as such to draw a deed or an application for an original title for land, is in the line of his profession, and is precluded from buying in for his own use any outstanding title. The relation between him and his client is confidential, and whether he acts upon information derived from him or from any other source, he is affected with a trust: Galbraith v. Elder, 8 Watts 94; Cleavinger v. Reimar, 3 W. & S. 486; Henry v. Raiman, 1 Casey 354. This is on the ground of policy, not of fraud; for the attorney may be entirely innocent of any intention to deceive, and act in the most perfect good faith. It is of the utmost importance that men should be able to intrust with entire safety their most secret interests to their professional advisers. Hence the rule is an unbending one, and without exception, that when the attorney buys in a title outstanding or adverse to land as to which he has been consulted or employed, he buys for his client, if the client should elect to take it. The cestui que trust must of course, if he asks the interposition of a chancellor to assist him, do equity by reimbursing the outlay and costs of the trustee, unless it may be in a case of manifest fraud intended and attempted to be perpetrated.

But the evidence in the court below failed to show any case to warrant the application of the principle. Mr. Brotherline was not consulted or employed in regard to the premises involved in this ejectment. They included two of a block of connected surveys known as the Barton Surveys. At the request of John R Smith he drew for him an application to the surveyor-general "for four hundred acres of land situate in Antis township, Blair county, and Clearfield township, Cambria county, Pennsylvania, adjoining lands included in the survey of Benjamin R. Morgan on the east, and land included in the survey of ____ Barton on the west." By the terms of this paper, the Barton surveys were expressly excluded. The plaintiff was not consulted as to the title of the Barton surveys or as to any land included within them. It is true that it is added, "On which said tract of land there is an improvement erected and occupied by the subscriber since the 27th day of November, A. D. 1852." This was inserted to enable the land office to compute the interest due to the Commonwealth on the purchase-money, and to fix incidentally and conclusively as to the applicant the date of the inception of his right by settlement as against any intervening claims. But it now appears that the fact was not as asserted, that the improvement was not erected on the land applied for, but on other land not included — in fact, on a part of the Barton surveys expressly excluded. There is not a spark of evidence, nor is it even pretended, that Mr. Brotherline knew when he drew the application, or afterwards at any time before he purchased the Barton surveys, that the defendant Smith's improvement was upon them. How, then, can it be pretended that he stood in a confidential relation as regards these surveys, any more than if he had bought warranted land one hundred miles off upon which his client had a claim by settlement? The learned judge below took the decision of no question of fact from the jury; for there was no evidence upon which any such question could arise. He might have contented himself with a simple and absolute direction to find for the plaintiff on his paper title. This disposes of all the assignments of error except the 7th, which excepts to the verdict as insensible and void for want of certainty.

The title of the plaintiff below was deduced through a sale for taxes by the treasurer of Cambria...