Zeigler v. Hughes

• Citation: 1870 WL 6416,55 Ill. 288
• Parties: FREDERICK M. ZEIGLERv.GEORGE R. H. HUGHES.
• Decision Date: 30 September 1870
• Court: Supreme Court of Illinois

55 Ill. 288

1870 WL 6416 (Ill.)

FREDERICK M. ZEIGLER

v.GEORGE R. H. HUGHES.

Supreme Court of Illinois.

September Term, 1870.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. ERASTUS S. WILLIAMS, Judge, presiding.

The opinion states the case.

Mr. B. D. MAGRUDER, for the appellant.

The relation of attorney and client does not cease, where the former is employed to foreclose a mortgage, until the expiration of the time of redemption, in case a sale is had under the foreclosure. Smith v. Harvey, 31 Ill. 62; Watkins v. McLean, 43 Ill. 24.

As to the degree of good faith and fairness required of an attorney or an agent, in dealing with his client or principal, see Fox v. McReth, 1 Lead. Cas. in Eq. 138; 1 Story Eq. Jur. secs. 310, 313; Pensonneau v. Bleakly, 14 Ill. 15; Casey v. Casey,ib. 112; Jennings v. McConnel, 17 Ill. 148; McDonald v. Fithian, 1 Gilm. 269; Phelps v. Reeder, 39 Ill. 172; Moore v. Bracken, 27 Ill. 26; Dennis v. McCagg, 32 Ill. 429; Robbins v. Butler, 24 Ill. 387.

Mr. GEORGE F. BAILEY, also for the appellant.

Messrs. GOOKINS & ROBERTS, for the appellee.

The rule is, “If a solicitor deal with his client he must prove that the client had due professional advice and assistance for the purpose of explaining the matter to him.” Barnard v. Hunter, 39 Eng. Law & Eq. 569. When this is shown, we insist the parties will be regarded as having dealt at “arm's length.” See notes to Story's Eq. Jur. secs. 310, 311; Casey v. Casey, 14 Ill. 112; Jennings v. McConnel, 17 Ill. 148.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

In July, 1845, Brantz Mayer and wife, of Baltimore, Md., executed to the complainant, Zeigler, of the same place, a mortgage upon the undivided half of a lot of ground in the north division of Chicago, fronting 100 feet on Ontario street, and running back 109 feet on Cass street, to secure $5860, to be paid November 1, 1845. The mortgage was not legally acknowledged or proved, the combined proof and acknowledgment containing no identification of the grantors, but it was recorded. March 28, 1861, Zeigler gave to the appellee, Hughes, an attorney at law in Chicago, the following power of attorney and agreement in writing:

“I do hereby authorize George R. H. Hughes to prosecute my claim against Brantz Mayer, of Baltimore, and especially to foreclose the mortgage held by me on a lot of ground on Cass street, in Chicago, and do all acts necessary to be done, in and out of court, for the sale of said property so mortgaged; and I hereby promise and bind myself to allow said Hughes, out of the proceeds of said sale, after deducting necessary court expenses and costs, twenty-five per cent commission for his services and trouble, on the net sales.”

August 21, 1861, Hughes, as Zeigler's attorney, commenced a proceeding to foreclose said mortgage, by scire facias, in the superior court of Chicago, and at the October term, 1861, obtained a judgment by default on the return of two nihils, against Mayer and wife, for $7725.35.

May 23, 1862, the property was sold by the sheriff, under the execution issued upon this judgment, for $6000, that amount having been bid by Hughes for Zeigler. The certificate of purchase was issued in Zeigler's name, and delivered to Hughes, the time of redemption for Mayer expiring May 23, 1863, and for his creditors, August 23, 1863.

In January, 1863, Hughes went to Baltimore. Before leaving for Baltimore, an order was entered in the foreclosure suit, January 15, 1863, directing the sheriff to amend his return on the execution, the record reciting that the order was made on the motion and affidavit of Hughes, as Zeigler's attorney.

January 31, 1863, in Baltimore, Zeigler, upon the application, and at the request of Hughes, executed an assignment of the whole of his judgment against Mayer, and also of the certificate of purchase, and of the mortgage and the indebtedness secured by it, to one Sanderson Robert, of Cincinnati, upon these terms: $700 paid in cash January 31, 1863; $800 to be paid September 1, 1863, or sooner, at the option of the grantee, upon condition, however, that if Mayer should appeal from the judgment, or the same should be declared void, the payment of the $800 should be deferred until the title should become confirmed in Robert.

Before this purchase, A. W. Arrington, a lawyer of eminence in Chicago, had advised, that in consequence of the defect in the acknowledgment of the mortgage, the judgment was subject to reversal on error, and that, to avoid the effect upon the title, of such reversal, the property be conveyed to a third person. The negotiation for the purchase from Zeigler was carried on wholly through Mr. Glocker, Zeigler's attorney in Baltimore, they both being Germans, speaking the German language.

The $800, less twenty-five dollars for an abstract, was paid August 21, 1863. The certificate of purchase was delivered up by Zeigler September 1, 1863. September 4, 1863, in Chicago, Robert executed and delivered to Hughes a declaration of trust, stating that he held the judgment, the certificate and the title by sheriff's deed to be executed, in trust for Hughes, and would convey to Hughes whenever requested.

September 5, 1863, the sheriff executed a deed to Robert, as assignee of the certificate. November 18, 1863, Zeigler executed a quit claim deed to Robert, at Hughes' request, in order to strengthen the title already in Robert by the assignment of the certificate and the sheriff's deed.

January 5, 1864, Robert died suddenly, the legal title being in him. By a chancery proceeding, begun July 4, 1864, resulting in a decree, October 14, 1864, vesting the title in Hughes, and a master's deed to Hughes, dated October 19, 1864, and also by deeds from the heirs of Robert, executed in August, 1864, and October, 1865, the legal title which was in Robert at the time of his death, became vested in Hughes. In March, 1864, Zeigler, at Hughes' request, executed a release to Mayer of the balance of the judgment, over and above $6000. Robert's administrator also executed a release of said balance. By delivering up these releases to Mayer, one Brown, of Baltimore, induced Mayer to execute a quit claim deed, dated May 30, 1864, of said property to him, Brown. June 2, 1864, Brown executed a quit claim to Hughes. Thus Hughes became the owner of the mortgagor's interest in the property. October 21, 1865, Griswold, the owner of the other half of the lot, and Hughes, divided. Hughes took the east forty feet, Griswold the west sixty feet. Griswold paid Hughes $1250 in cash for the excess of the sixty feet in value over the forty feet. Between June, 1864, and October 21, 1865, Hughes collected from the property, rents to the amount of $127.37. January 11, 1866, Hughes sold the east forty feet to Stark for $7500 in cash.

The bill in this case was filed September 22, 1868. The matters complained of are, that Hughes bid in the property against the wishes of Zeigler, who wanted it sold for what it would bring; that he did not try to make the sale known to the public, but kept it quiet for his own purposes, when, by proper efforts, it would have brought $5000 or $6000; that in January, 1863, he represented to Zeigler that Robert would give him $1300, then $1500, for his interest in the certificate and claim, and that this was its full value, and it would be a good sale; that Robert was in poor health, and urged an acceptance of the offer without delay; that he understood the value of the property, and exaggerated the defects in the title fraudulently and to get the land for himself; that it was at that time worth $125 per foot; that he fraudulently represented that Robert was the purchaser, when he was himself the purchaser; that he, by that means, bought the property for less than half its value; that November 18, 1863, he, at Hughes' request, executed to Robert a quit claim deed of the property, which was sent to Hughes for Robert; that he executed to Mayer a release of the balance of the debt, at the instance of Hughes, and to enable the heirs of Robert to assert their rights to the property; that Hughes procured the release from him in order to get a quit claim deed of the property from Mayer, which was accomplished by Brown, a brother-in-law of Robert, obtaining the deed to himself, June 7, 1864, who afterwards conveyed to Hughes. The bill prays for an account against Hughes, and that he should pay over what he has realized from the lot.

The answer denies the fraud charged in the bill, and the facts on which the charge is based; alleges that the claim against Mayer was worthless, being barred by the statute of limitations, and that Mayer was insolvent; that the judgment of foreclosure was reversible on error, by reason of a defective certificate of acknowledgment; that owing to the character of the claim, Zeigler would only give a contingent fee; that Glocker, of Baltimore, Zeigler's attorney, had twice visited Chicago, and become well acquainted with the value of the property; that in his correspondence with Glocker, he gave him his best information concerning it, and informed him that in 1859, a friend had valued it at $175 per foot. He sets forth in his answer, the particulars of the negotiation between himself and Zeigler, all of which was carried on through Glocker; some of the leading facts of which are, that his interest of 12 1/2 feet was undesirable, as it could not be improved to advantage, or sold, and it was necessary for him to buy or sell to make it available; that in July, 1862, Zeigler, through Glocker, offered one-fourth to Hughes for $800, which he declined, and again in October, he offered one-fourth at $500; that he once got an offer from Robert of $1100, for one-half, which the latter afterwards withdrew, in consequence of the defects in the title; that he forwarded A. W. Arrington's opinion to Glocker in December, 1862; that after Robert declined it, Hughes made, through Glocker, the offer of $1500; Glocker...