Yerkes v. Crum
| Decision Date | 13 July 1891 |
| Citation | 49 N.W. 422,2 N.D. 72 |
| Court | North Dakota Supreme Court |
APPEAL from district court, Cass county; Hon. WILLIAM B. MCCONNELL Judge.
Action for cancellation of tax deed, to quiet title to certain realty in plaintiff and for possession of the same. Judgment for plaintiff. Defendant appeals. Reversed.
Reversed.
J. E Robinson and Taylor Crum, for appellant.
Stone Newman & Resser for respondent.
Mr. Crum presented the case for the appellant in an exhaustive oral argument, but cited no authorities in his brief.
Stone, Newman & Resser for respondent:
Appellant could not, pending the litigation between respondent and the Hadleys, in which he acted as attorney for them, acquire any interest in the premises in question antagonistic to the Hadleys by the purchase of an outstanding tax title. Such purchase is wholly void and the question may be raised by respondent. Lynn v. Morse, 39 N.W. 203; Greenhood on Public Policy, p. 437; Rogers v. Marshall, 13 F. 59; Henry v. Raiman, 25 Pa.St. 354; Lindsey v. Sinclair, 24 Mich. 380. If not wholly void appellant would take in trust, and such purchase would inure to the benefit of the Hadleys, and any interest thereby acquired would pass co instanti and vest in respondent by operation of law, and this could not be prevented or such interest divested by any act or consent of the Hadleys. Stockton v. Ford, 11 How. 232; Moore v. Bracken, 27 Ill. 22; McDowell v. Milroy, 69 Ill. 498; Reichhoff v. Brecht, 2 N.W. 522. Equity would treat appellant as trustee for respondent in the purchase in question. His act was the act of the Hadleys. Black on Tax Titles, § 138; Cooley on Taxation, p. 345-6; Blackwell on Tax Titles, *399; Frye v. Bank, 11 Ill. 367; Douglas v. Dangerfield, 10 Ohio 152. Such a transaction is always presumptively fraudulent and void and the burden of proof is on appellant, and it is sufficient for respondent to allege the transaction alone. Whipple v. Barton, 3 A. 922; Briggs v. Hodgdon, 7 A. 387; Rogers v. Mining Co., 9 F. 721; Jennings v. McConnell, 17 Ill. 148; Kisling v. Shaw, 33 Cal. 425; Merryman v. Euler, 46 Am. Rep. 564.
OPINION
A brief statement of the pleadings is necessary for a proper understanding of the points raised by this appeal. The complaint states that plaintiff is the owner of a certain lot in the city of Fargo, and as his source of title avers that in December, 1881, Lafayette Hadley and Kate Irene Hadley, his wife, executed to plaintiff a mortgage on said lot to secure a certain sum of money, the mortgagors undertaking to pay all taxes that had been or might be assessed against the premises; that default was made in the payment of the amount secured by the mortgage, and the same was foreclosed and bought in by plaintiff for the amount due upon said mortgage, with costs and disbursements, and, no redemption thereof being made, plaintiff received a sheriff's deed for said lot; and in October, 1885, he commenced an action against the Hadleys to quiet title, and for possession; and that under the decision of the supreme court of Dakota territory rendered on or about March 2, 1889 (see Yerkes v. Hadley, 5 Dakota 324, 40 N.W. 340), the title to said lot was quieted in plaintiff, and he was in fact in possession; that during the whole of the time said action was pending the defendant, Crum, who was a duly admitted attorney in the courts of said territory, acted as the attorney for the said Hadleys, and conducted said litigation in their behalf, and as their sole attorney; that the Hadleys neglected to pay the taxes assessed upon said lot for the year 1884, and in October, 1885, said lot was sold by the treasurer of Cass county for said delinquent taxes, and tax-sale certificate therefor issued to one Clifford; that about April 20, 1887, and while the defendant, Crum, was acting as the attorney of said Hadleys in said litigation, Clifford assigned said certificate to said defendant, and on October 6, 1887, defendant surrendered the same, and received a tax-deed for the lot, and subsequently took possession thereof, claiming title under the tax-deed. Plaintiff also alleged tender of the amount due under the tax certificate. The prayer was for the cancellation of said deed and the restoration of possession to plaintiff. A demurrer to the complaint as not stating a cause of action was overruled, and exception taken. Subsequently defendant filed his answer, the material portions of which are as follows: "Defendant specifically denies that he was the attorney for Lafayette and Kate Irene Hadley, or either of them, during all the time from or about the 3d day of November, 1881, until on or about the 11th day of March, 1889, either as alleged in said complaint or otherwise; but in this behalf defendant alleges that he was the attorney for Kate Irene and Lafayette Hadley from on or about the 9th day of October, 1885, until the 8th day of April, 1887, on which said 8th day of April, 1887, the relation of attorney and client between the defendant herein and said Kate Irene and Lafayette Hadley ceased and terminated by mutual consent; that after said 8th day of April, 1887, defendant acted in said action in his own interest and in his own behalf, using the name and title of the original action, under and by virtue of § 85 of the Code of Civil Procedure." Then follows a specific denial that defendant was acting as attorney for the Hadleys on April 20, 1887, when the tax certificate was assigned to defendant, or on October 6, 1887, when the tax-deed was executed. On the coming in of the answer plaintiff moved for judgment on the pleadings, and the motion was granted, and judgment rendered accordingly.
Appellant urges the insufficiency of the complaint in this court. It is admitted that it would be a good complaint, as against the Hadleys, were they attempting to hold under this tax-deed and it is no doubt equally true that the complaint would be insufficient against a tax-title holder in no manner connected with the Hadleys. The due and orderly administration of the law requires that causes should be presented to the courts by men specially fitted to aid the courts in the discharge of their duties--men who spend their lives studying the great principles of justice, and their application to the infinite variety and countless ramifications of the business affairs of life. The proper discharge of the functions of an attorney requires that the client should place his affairs in the hands of his attorney without hesitation or reservation--like an open book, to be read and understood in every detail, and the more ignorant and inexperienced the client the greater the necessity. From these conditions it inevitably follows that the attorney will often have opportunities to take unconscionable advantage of the ignorance or necessities of his client. The law has always been keenly solicitous to forestall any such result, and this alike for the protection of the financial interests of clients and the high standard of the legal profession. It does not wait for fraud or deceit to be alleged and proven. It simply looks at the transaction, and, if the circumstances be such that the confidence of the client may be abused, or a temptation held out to the attorney to be unfaithful to his trust, it places the stamp of prohibition upon that transaction. Rogers v. Marshall, 3 McCrary's Cir. Ct. Rpts 87, 13 F. 59. Henry v. Raiman, 25 Pa. 354. Among the transactions thus prohibited are those by which an attorney, while acting as such, obtains any title to or interest in the subject-matter of the litigation which is antagonistic to the title or interest of his client. In the judgment of the writer of this opinion, such transactions are nugatory, and wholly void, so far as they purport to transfer any beneficial title or interest to the attorney. If he takes anything, he takes it in trust for his client, and it at once inures to the benefit of his client. See, on this point, Cunningham v. Jones, 37 Kan. 477, 15 P. 572; Elliott v. Tyler, (Pa.) 3 Sadler 584, 6 A. 917; Zeigler v. Hughes, 55 Ill. 288; Wright v. Walker, 30 Ark. 44; Cleavinger v. Reimar, 3 Watts & Serg. 486; Lynn v. Morse, 76 Iowa 665, 39 N.W. 203; Harper v. Perry, 28 Iowa 57; Baker v. Humphrey, 101 U.S. 494, 25 L.Ed. 1065; Briggs v. Hodgdon, 78 Me. 514, 7 A. 387. Many more cases on this point are found in the books, some of them, like the case in 101 U.S. only going to the extent of declaring that the attorney cannot, without the client's consent, purchase an antagonistic interest. This qualification is usually found in controversies between the attorney and client. The precise point was raised and fully discussed in Cunningham v. Jones, supra, and the conclusion reached that the failure of the client to object did not in any manner validate the transaction. See,...
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