Roman v. Mali ( 1875 )

Robinson, J.,

filed the following dissenting opinion, in which Chief Judge Bartol and Judge Miller, concurred :

The hill in this case was filed against the appellant as devisee of the late J. Philip Roman, to compel her to convey to the appellee certain property on Locust Point, in the City of Baltimore, the legal title to which was held by Roman at the time of his death.

It substantially alleges that Roman acquired the title to the property in the capacity of agent and legal adviser of Mali, the complainant, that he paid for it with the money of Mali, and that from the time of its purchase until his death, in 1871, he held it as agent and trustee of Mali.

The appellant, in her answer, denies all the material allegations in the bill touching the purchase of the property by Roman, as agent or legal adviser of Mali, relies upon the lapse of time and the entire absence of any written evidence of the title of Mali to this valuable property, and says if it should be established that Roman acquired the title to the property in pursuance of an agreement between him and Mali, for the purpose of concealing it from the creditors of Mali, the latter has no right to invoke the aid of a Court of Equity to restore to him the property thus fraudulently conveyed.

The law in regard to presumptive or resulting trusts, as applicable to the case before us, is too well settled to admit of much contention. It is sufficient to say, that in all cases where the conveyance of the legal estate is taken in the name of one person, while the consideration money is paid or furnished by another, the parties being strangers to each other, a resulting or presumptive trust arises by virtue of the transaction, and the person named in the conveyance will be held to be a trustee for the party from whom the consideration proceeds. And inasmuch as the Statute of Frauds extends to creations or declarations of trusts by parties only, and does not affect, indeed expressly excepts, trusts arising by operation or constructions of law, it is competent for the real purchaser to prove his payment by parol evidence, even though it be otherwise expressed in the deed.

In some of the earlier cases, it is true, a distinction was taken in regard to the nature and character of the proof, before and after the death of the nominal purchaser, and it was held in some of these cases, that after the death of the nominal purchaser, parol evidence alone was not sufficient to establish a trust against the express declarations in the deed. These cases, however, have been overruled, and it may now be considered settled law, that whatever effect the death of the nominal purchaser may have upon the weight of the testimony, it does not affect its admissibility.

In Leach vs. Leach, 10 Vesey, 517, where the plaintiff after the death of her husband endeavored to establish a claim to a trust in an estate, on the ground that it had been purchased by her husband with trust money, Sir William Grant held, “that the question as to whether the purchase was made with trust money, depended upon the proof of the fact, and whatever doubts may have been formerly entertained on the subject, it was now settled, that money may be followed into the land in which it was invested ; and that a claim of this kind may be established by parol evidence. It may be proper to say however, that the proof in such cases ought to be of the most certain and satisfactory character.”

The first question then, to be determined, is whether the proof in this case, conclusively shows, that the property in question, was purchased by Roman for and on account of Mali, and paid for with Mali’s money?

It would extend this opinion to an unreasonable length, to examine in detail the testimony to be found in the five hundred pages of this record, and we shall therefore refer only to some of the prominent facts bearing upon this question.

In 1853, the Messrs. Ellicotts sold the Locust Point property now in dispute, to Otis P. Jewett for the sum of $85,000. Jewett paid $15,000 cash, assumed to pay certain liens and incumbrances upon the property amounting to $37,071.02, and gave his several notes for $32,928.98, residue of the purchase money, the payment of which was secured by a mortgage of the property.

In April, 1853, Mali, the complainant, purchased of Jewett a half interest in the property, in consideration of which he paid $7500, being one-half of the cash payment paid by Jewett, and agreed to pay one-half the purchase money due to the Ellicotts.

In the spring of 1854, Mali being about to leave for Europe, seems to have requested Roman to send him a power of attorney, authorizing Roman to act for him in reference to his interest in this Locust Point property, during his absence. Roman enclosed the power of attorney to be executed by Mali, and says:

“ It is very broad, and therefore, I wish you to write me, giving particular instructions with regard to the property, if sold, as to price, &c. Be assured, 1 will look entirely to your interest, yet I hope Mr. Jewett will buy you out. If he finds you intend to divide, I think he will at once come into terms.”

On the 3rd of June, the day on which Mali sailed, Roman told Jewett that Mali had placed all his business affairs in his. (Roman’s) hands, as his (Mali’s) counsel and trustee.

While Mali was in Europe, the Parker Yein Coal Company, of which he had been President, failed, -in consequence of which he returned home much sooner than he expected. On his return, he found himself threatened with suits by certain stockholders of the Company to recover damages on account of the over-issue of stock.

At that time Mali lived in the city of New York, and was worth from one to two hundred thousand dollars. Roman lived in Allegany County, in this State, and was a director in and attorney for the Parker Yein Coal Company, which owned large and valuable coal mines in that county. Mali, evidently alarmed on account of these suits, writes to Roman, his attorney, and in reply the latter says:

“ Converse with no one before you take legal advice.” “ Don’t he frightened, they can’t hurt a hair of your head, and as to confiscation, that is all humbug I regret exceedingly you did not tell me of the difficulty when you were in Cumberland. I think if you had done so, my advice and counsel would have relieved you of all difficulty ; don’t he alarmed, take legal advice and be careful about your declarations. Let me know when you return ; telegraph at once.”

This letter was dated July 11th, and on the 24th of the same month, we find Roman in New York making preliminary arrangements, hy which the Locust Point property ultimately came into his possession. Nothing was done in reference to this property during Mali’s absence in Europe, although it is evident from the correspondence and power of attorney referred to, that he expected to make a sale of it through Roman, as his agent. On the 25th of July, the day after Roman arrived at New York, Mali sells his one-half interest in the property to Jewett, for $50,000, and sells also to him certain stock in the Parker Vein Steamship Company, for $25,000. .To secure the payment of these several sums, amounting to $75,000, Jewett mortgaged the whole property to Mali. In making this sale, the proof shows that Roman acted as Mali’s attorney and agent. The $75,000 note and mortgage were at the same time assigned hy Mali to Roman. In the latter part of 1854, suits were brought against Mali, and also against Jewett to recover damages from them on account of the over-issue of the Parker Yein Coal Company’s stock. Roman was the counsel both of Mali and Jewett, and advised them that these claims were unfounded, and that the suits were only intended to levy black-mail.

In consequence of these suits, and for the purpose of placing it beyond the reach of judgments, should any be recovered, Jewett conveyed his interest in Locust Point, the same being a mere equity of redemption, to his brother Clarence Jewett.

On the 1st of January, 1855, the notes and mortgage to the Ellicotts for the unpaid purchase money became due, and the Jewetts having failed to pay the same, an ex parte petition was filed on the 15th of the month by Roman, as assignee of said notes and mortgage, for a sale of the property. Upon this petition a decree was passed and George H. Williams, Esqr., appointed trustee. No sale, however, was made under this decree.

The next step by Roman was to get from Clarence Jewett a conveyance of the interest held by him under the deed from his brother, Otis. For this purpose, Roman had several interviews with Clarence, in which he represented himself as acting as the agent of Mali, and with a view of protecting Mali’s interest in the property. He told Clarence Jewett that the deed from his brother Otis was made without consideration, and would not stand the test of the law, and that it would not be safe for Mali, under the circumstances, to advance any more money on account of the property. He then proposed that Clarence should convey to him whatever interest he Clarence might have under the deed from his brother Otis, the same to be held by Roman for Mali’s benefit. To this Clarence finally assented, with the understanding that the interests of his brother and himself should be protected. When the deeds were prepared, the name of J. Dixon Roman was inserted as grantee, J. Philip Roman saying, it was necessary that the conveyance should be made to a third party. These deeds were executed on the Ith of February, 1855, and on the 10th, Roman filed an original bill to foreclose, in which he refers to the former proceedings, and prays that the decree under them may be annulled for the following reasons.

1st. That since he purchased the EllicOtt mortgage, he had discovered that part of the property is leasehold and that one-quarter’s rent is due.

2nd; That Mali held a mortgage from Jewett upon the property for $75,000, the condition of which was broken by Jewett’s failure to pay the Ellicott mortgage, and that Mali insists he has a right to proceed without delay under his mortgage.

3rd. That Otis P. Jewett had assigned his interest to Clarence, and that the latter had assigned the same to J. Dixon Roman. The bill then avers that by reason of Jewett’s mortgage to Mali, and the conveyance to J. Dixon Roman, the title to the property may be clouded, &c.

The bill of February 10th being filed, answers, admitting the averments of the bill and consenting to a decree as prayed, were filed at the same time by Jewett and wife, Mali and J. Dixon Roman ; and on the same day a decree for sale was passed, and Mr. Williams was again appointed trustee. On the 15th of March, 1855, the property was sold by the trustee for $46,000, subject to the same liens which were on it when Jewett purchased, in 1853, and J. Philip and J. Dixon Roman were returned as purchasers. On the day of the sale J. Philip Roman writes to Mali:

“ I bought the property to-day, in the name of J. Dixon Roman and J. Philip Roman, for $46,000 cash, subject to mortgages. No bi’d but mine.”

After years of protracted litigation, judgments were finally recovered against Mali in the suits for damages on account of the over-issue of the Parker Vein Coal Company’s stock, amounting in the aggregate to over one hundred and fifty thousand dollars. At the instance of the judgment creditors, Mali was examined under oath, for the purpose of making him disclose what property he had, and what disposition, if any, he had made of the same. In this Examination Mali denied that Roman was his counsel, and also denied having any interest in the property now in dispute. Subsequently a bill was filed by a receiver against Mali and Roman, in which it was alleged, among other things, that Mali had transferred to Roman large claims held by him against the Parker Yein Goal Company, and also large interests in real estate in Maryland, for the purpose of defrauding his creditors. To this bill, separate answers were filed by Mali and Roman under oath, in which the allegations of the bill were emphatically denied by them in every particular. Thus baffled in every effort to reap the fruits of their judgments, the creditors were finally induced to accept Roman’s offer of eleven cents in the dollar, and upon the payment of this sum the judgments were entered to the use of Roman.

We have thus endeavored to trace, as briefly as possible, how and by what manner Mali acquired an interest in the property — the disposition he made of the same, the relations of Roman with him, and the connection of the latter with the Locust Point property. In doing this we have seen that Mali, who prior to the institution of these suits, was a member of a large and prosperous mercantile firm in the city of'Rew York, and worth from one to two hundred thousand dollars, stripping himself of all his property, assigning at one time to Roman a mortgage of $75,000, and then at another, bonds of the value of thirty thousand dollars, until not a dollar’s worth of property could be found within the reach of the judgment creditors. On the other hand, Roman, who prior to this time was without any property, borrowing small sums of money to meet his daily necessities, suddenly becomes a man of fortune, with thousands of dollars at his command, buying property at a cash sale for $46,000, and, as the record shows, immediately thereafter expending as much more in its improvement. The inquiry then naturally suggests itself, are we dealing with truth or with fiction ? — were the assignments by Mali to Roman made for a valuable consideration ?— were the Romans, in fact, the purchasers of the Locust Point property ? — did the answers filed by Mali and Roman 'under oath in the proceedings by the judgment creditors, speak the truth? — or were they'one and all but false and fraudulent devices, successive steps of a scheme deliberately •and corruptly planned by Roman, and through fraud and perjury successfully carried out, the purpose of which was to get possession of Mali’s property, and thereby defraud Mali’s creditors?

■ The facts already referred to are sufficient at least, we think, to excite a suspicion in regard to the good faith of these transactions, but when viewed in connection with the proof we are now about to consider,, there can be no difficulty in answering each and all of the inquiries above suggested.

The Locust Point purchase amounted to $46,000, of ■which $16,574.42, was audited to the $75,000 note of 'Jewett to Mali, thus leaving but $29,425.58, to be paid •to the trustee. Now if we turn to pages 20, 21, of Ledger J. P. Roman, we find the following entries under the .head of “Locust Point estate: ”

1855. D. To cash paid through Geo. H. Williams, trustee, under auditor’s report.. $29,518 58

B. Five houses built by Clarke and Smith; see account B, filed, with my papers.. . 2,377 65

A. Cost of repairs to warehouse, new roof, stone foundation, &c...................... 2,795 64

C. Cost of coal wharf; see account C........ 20,402 48

E. Amount paid through A. C. Hall; see account A..................................... 1,263 22

F. Cash paid out by J. Philip Roman in 1855; see account F and vouchers..... 3,086 59

.1856. G. Amount paid out per account G filed with my papers..................... 10,931 20

1857. H. Cash paid out per account, and vouchers filed with my papers, marked H 20,853 45

1858. J. Paid out per account, and vouchers filed, marked J............................... 3,214 96

Thus making the sum of........................ $94,443 77

paid by J. Philip Roman during these years on account of the property. How if we turn to page 28 of the same Ledger under the head “Hippolyte Mali,” we find the following debits charged against Mali:

“1855-56-57-58, Cash at divers times, see accounts, $89,754.59. { $94,443.77.”

It thus appears tiiat every dollar paid by Roman on account of the property, and every dollar paid for its improvement amounting in the aggregate to $94,443TV¥, was charged by him to Mali. These entries by Roman, in his own Ledger, prove beyond all controversy, that the property in question was purchased by him, and improved as the agent of Mali. They are susceptible of no other construction. And as to the further question, whether he had at the time money in hand belonging to Mali, sufficient to pay the purchase money, is we think answered by other entries to be found in the same Ledger. The whole amount of purchase money, applicable to every charge against the property, except the $75,000 note and mortgage of Mali, was $29,425xVo, from which must be deducted James’ lien of $4,662XW, paid by Mali before the sale, thus leaving but $24,763xWto be paid to the trustee. How on page 27 of the Ledger, Mali is credited with $49,373 AV, to which must be added the further sum of $12,600, the pfoceeds arising from the sale of 35 steamship bonds, making $61,973 AV- Deduct from this sum, the debits charged against him on the same page, amounting to $35,577t¥«, and we have due to Mali in April, 1855, $26,395^.

If the case rested here, it must be admitted there is strong and pregnant proof, tending to show, not only that the property was purchased for Mali, but also that it was paid for with his money. But if to this proof we add the testimony of Spates, Otis P. and Clarence Jewett, the conclusion is irresistible. Of all persons, Spates certainly had the best opportunity of knowing the facts and circumstances connected with the purchase of the property. He was Roman’s trusted, and confidential friend, with whom he consulted, not only in regard to the purchase and improvements, hut in fact as to every step taken in connection with the property. Spates testifies, that Roman told him before the sale, that he intended to buy the property, put up buildings, improve it and make it a coal depot for Mali; that by the first of April, 1855, he would have in hand at least sixty thousand dollars belonging to Mali; that in 1856, he would receive thirty thousand dollars more, and that the entries in his hooks would show these credits to Mali. After the purchase, he went with Roman, examined the property, selected the location for the coal wharf, and estimated the cost of the same. That Roman was to submit the plans to Mali, and if approved by him, he Spates was to superintend the erection of the same. He further testifies that Roman told him, that the entire control and management of the property was to remain in his, Roman’s hands, until the New York suits against Mali were settled, and then the property was to be returned to Mali. That between the years 1855 and 1862, witness was present at repeated interviews between Roman and Mali, when the receipts from and expenditures on the property were discussed, and vouchers exhibited and examined ; that it was understood between them, that the account was to be kept in Roman’s Ledger, under the head of “ Locust Point,” and that in their correspondence, no reference was to be made of Mali’s ownei’ship of the property.

Otis P. Jewett testifies that prior to the sale of the property, Roman told witness that he wanted to secure the title of the property for Mali, and that after the sale, so late as the year 1867, in repeated conversations with Roman about the proj>erty, he always said he held it for Mali, and spoke of it as Mali’s property, and never intimated that either J. Dixon Roman or himself bad any interest in it.

In addition to this, Clarence Jewett says, that in all his interviews with Roman in regard to the conveyance of the interest held by him under deed from his brother Otis, Roman professed to be acting as the agent of Mali, and said his object was to protect Mali’s interest.

It is unnecessary to extend this opinion by a review of other facts to be found in the record. It is sufficient to say, that upon the px-oof already referred to, upon the written admissions of Roman himself — upon the positive testimony of Spates and the two Jewetts, witnesses unim peached and uncontradicted, we are forced to the conclusion that the property was purchased by Roman as the agent and legal adviser of Mali, and paid for with Mali’s money.

In regard to J. Dixon Roman, it is only necessary to say, that the whole record shows that he never in fact had any interest in the property, and that he was returned as one of the purchasers, and his name inserted in the deed from Clarence Jewett, for the purpose of deceiving and misleading Mali’s creditors.

We come now to the question, conceding that the legal title of the property was conveyed to Roman in pursuance of an agreement with Mali for the pux-pose of defrauding Mali’s creditors, will a Court of Equity compel the appellant as devisee of Roman to re-convey the property thus fraudulexxtly acquired? As between man and man standing upon an equal footing, we should not hesitate to say ixo. In such a case the maxim “in pari delicto” would apply in its fullest force. But this maxim, wise and salutary as it may be, is not one of universal application, on the contrary, it is subject to certain exceptions as binding in authority as the rule itself. We take the law to be well settled, that although both parties are in delicto it does not always follow that they stand in pari delicto; for there may be, and often are, very different degrees in their guilt. “ One party may act under circumstances of oppression, imposition, hardship, undue influence, or great inequality of condition or age; so that his guilt may he far less in deg'ree than that of his associate in the offence, and in such cases public policy may require that relief should be granted, however reprehensible the acts and conduct of the parties may be.” 1 Story’s Equity Jurisp., sec. 800;

Osborne vs. Williams, 18 Vesey, 379; Lord St. John vs. Lady St. John, 11 Vesey, 535; Smith vs. Bromley, Doug., 696; Browning vs. Morris, Cowper, 790; Morris vs. McCullock, 2 Eden, 191; 1 Fonblanque’s Equity, book 1, chap. 4, sec. 4, note y.

The question then resolves itself into this, does the testimony in the record before us, prove such an inequality of condition between Roman and Mali, and the exercise of .such an influence by the former over the latter, as to entitle the complainant to relief, although he may have been a party to the fraud relied on by the appellant ? Now if there is one fact established beyond all controversy, it is that befqre and at the time of the sale of the property in question, the relation of client and attorney existed between them. Further than this, the proof conclusively shows,, that in the long and protracted litigation growing ■ out of the suits against Mali to recover damages on account .of the over-issue of the Parker Yein Coal Company’s stock, in the sale by Mali to Jewett of his interest in the Locust Point property — in the cunningly devised chancery proceedings under' which the property was sold, in the examination of Mali under oath, and in the subsequent proceedings by. Iiicks the receiver, Roman was the master-spirit who planned, advised and counselled every step by which he thus acquired possession of Mali’s property, and prevented .the judgment creditors from reaping the fruits of their judgments.

■ Before Mali sailed for Europe and before the failure of •the Parker. Yein Coal Company, Roman encloses to him a power of attorney in the broadest terms, authorizing him to act as attorney. After the failure of the company, and when Mali was threatened with suits on account of an over-issue of stock, he writes:

“ Don’t be frightened, they can’t hurt a hair of your head.”

Afterwards when Mali seeks his counsel and advice he tells him “to put all Ms property and the eases in his hands, follow Ms advice and he would see him through.” Other counsel it is true were employed in the New York cases, but they acted under the guidance and control of Roman.

To his confidential friend Spates he writes:

“Proceed very slowly with your negotiations, I do hate to give them any money, or to allow them to get any advantage of us, it will not do to give judgments now. Peel your way carefully.”

On the 18th of February, he writes again :

“I will go to the library here to-morrow and examine all the New York decisions. I hope you will get Yanderpool’s opinion, and if he suggests it, better get a written opinion from one of the tiptop lawyers.”

Then again February 20th :

“You had better break off negotiations for awhile.”

And on March 3rd:

“I think we will have to execute powers of attorney to confess judgment for about $25,000. If you talk with them, tell them we are afraid of other suits, and propose that, as it will secure all their influence against additional suits. Talk largely about O’Connor’s opinion that he can gain the suit.”

The relation of client and attorney is one of truth and confidence, and in regard to transactions between parties occupying this relation, Courts subject them to other and stricter tests than apply to the dealings between man and man standing upon am equal footing.

In Ford vs. Harrington, 16 N. Y., 285, where an attorney advised his client to convey to him an interest in property, for a grossly inadequate consideration, for the purpose of defrauding the creditors of the client, promising at the same time to reconvey the property to the client, after an arrangment should have been made with the creditors, Bowen, J., said:

£< I think this is a case where, on account of the relations existing between the parties and the circumstances under which the contract was assigned, the Court was called upon to interfere and compel the attorney to restore what he had acquired under the assignment, on being repaid what he had disbursed, although the object of the assignment was to perpetrate a fraud. The parties, although in ‘delicto,’ did not stand ‘in pari delicto.’ In the transaction, Conway was the mere instrument in the hands of the defendant. If an attorney will so far forget, or wilfully disregard his duty to the Courts, whose license to practice he holds, to his clients, who, in consequencet of such license, are induced to seek and act upon his counsel, and to the public, as, for the purpose of gain or profit to himself, to induce by his advice the commission of fraud by those who thus confide in him, he at least should be compelled to restore to his victim the fruits of his iniquity.”

The subsequent cases of Freelove vs. Cole, 41 Barbour, 318, and Gvodenough vs. Spencer, 2 N. Y. Sup. Court Rept., 588, approve and sanction the doctrine thus laid down in Ford vs. Harrington.

It is not necessary in this case to rest the right of the complainant to relief solely upon the relation of client and attorney. There is proof to show that owing to his troubles, the mind of Mali had in a measure become impaired, and it is impossible to read this record without seeing that from the time he first sought the counsel of Román, the latter exercised the most unbounded influence over him.

To permit a lawyer who thus advises his client, harassed by suits for damages, that the claims are unfounded, and the suits instituted solely for the purpose of levying blackmail, who subsequently corruptly counsels him to put all his property in his hands, with the promise to see him safely through, and who in the language of the learned Judge below, leads his client “ along the slippery paths of fraud and perjury,” to interpose the plea of pari delicto, is, with due respect to the opinion of the majority of the Court, a strange perversion of the principles .of public policy, upon which that wise and salutary maxim is founded.

The appellee’s counsel on the 11th October, 1875, made a motion for a re-argument of the foregoing case, assigning the following reasons in support thereof:

The question presented for decision was not whether the Court would give its aid to either of two parties who stand in pari delicto, it having been conceded in the former argument, that in such a case the Court will leave the parties as it finds them. But the real question to be determined is whether, when both parties are in delicto, one of them being however, in the eye of the law, more guilty than his adversary, the Court will not upon grounds of public policy, give relief to the less guilty.

In deciding upon the question of the relative degrees of guilt between parties to an illegal transaction, for the purpose of applying this principle of law, it is submitted that the Court does not consider the actual relative capacity of the parties, in order to determine which is the more in fault.

Relief in such cases is not granted because one party has availed himself of his personal superiority to oppress or defraud the other. When that state of facts is made to appear, the party oppressed or defrauded, is entitled to relief in his own right, grooving out of his situation.

But relief is granted on grounds of public policy, and is granted for the advantage of the public, and not of the party to whom it is given. The question of public policy in its application to such a case, arises from the relation in which the parties to the unlawful transaction stand towards each other, and not from their relative personal capacity to oppress or defraud.

The public is concerned in the maintenance of certain relations between parties in the strictest purity and integrity,- irrespective of all considerations of their. relative personal power and capacity. When those relations are shown to exist, the law concludes one party to occupy a position of superiority to the other, which cannot be used to gain an advantage for him who is thus presumed to be the superior.

Among the relations which public policy requires to be thus guarded, is that of counsel or legal adviser-, and client, and when it appears that a lawyer has advised his client to do an unlawful act, by which the former has obtained possession of the property of the latter, the law presumes from the relation itself, without evidence as to which was in fact the more capax doli, and without weighing their actual personal capacity, that the parties do not stand in pari delicto, but that the lawyer is the more guilty of the two.

' This conclusion is drawn not in the interest of either party, but in the interest of the public, which requires the maintenance of the utmost integrity and good faith on the part of the legal adviser. In the language of Judge Story, “ There may be on the part of the Court itself, a necessity of supporting the public interests, or public policy, in many cases, however reprehensible the acts of the parties maybe.” (1 Eq. Jur., sec. 300.) ' -

This principle is recognized by three of the Judges who concur in reversing the decree below. They say: “ There may be different degrees of guilt as between the parties to the fraudulent or illegal transaction, and if one party act under circumstances of oppression, imposition, undue influence, or at great disadvantage with the other party concerned, so that it appears that his guilt is subordinate to that of the defendant, the Court in such case will relieve.”

The minority of the Court agree in this principle, and it is not questioned, except by one of the seven Judges who heard the case. But in applying the principle, the three Judges who united in the reversal are understood as deciding that, in order to ascertain the existence of that disparity in guilt on which relief will be granted to one of two guilty parties, we are to weigh their relative personal degrees of capacity, instead of inferring it from the relation in which they stand.

In other words, it is understood to be laid down, that if counsel and client engage in an illegal transaction, under the advice and direction of the former, the Court will enquire which of the two was actually the more capable of imposing upon the other, and to what extent the client was personally capable of resisting and preventing the fraud of his counsel, and if it appear that the client was the more capable, mentally or morally, or both, than his legal adviser, relief will be refused to the former against the latter.

It is submitted, that is not in accordance with the meaning or policy of the rule as stated by the majority of the Court. It would result from such a principle of decision, that a lawyer may retain whatever he can get by advising a client of equal or superior capacity to his own, but that he will be made to restore what he gets by the same means from a client of less capacity.

The principle of the rule of public policy as applied to the relation of counsel and client, would thus be made to depend, not upon the absolute inviolability of the fidelity and integrity of the relation of counsel, but upon the extent of the personal capacity of the client. Public policy has nothing to do with the degree of personal capacity that clients may possess. It is as much against public policy for a lawyer to defraud au experienced and sagacious client, as a weak and inexperienced one. Public policy demands that the protection of the client in all cases shall he found in the law which governs the relation itself, and that protection cannot he afforded, if the Court permit the actual degree of personal capacity to he enquired into. The principle for which we contend, and the application of it in the manner we suggest, is well settled by authority. Lester vs. Howard Bank, 33 Md., 562; 1 Story’s Eq. Jur., sec. 308; Scott vs. Leary, 34 Md., 390.

In the latter case, relief was given to a party to an illegal transaction, because his infirmity in guilt was conclusively presumed from the establishment of the relation between the parties (that of debtor and creditor,) and there was no inquiry into the question of their actual relative degrees of capacity to enable the Court to decide which was in fact the more guilty.

In Austin’s Adm’r vs. Winston, 1 Henning & Munford, 32, the Court of Appeals of Virginia, gave relief to one of two parties to just such a transaction as this between Roman and. Mali, upon the sole ground that it had been advised by a creditor, and that from the relation alone, the law presumed him to he more guilty than his debtor, who followed his advice. The Court say: “ It is said that Winston was probably indebted ; that his conduct was a great violation of morality, in respect to his creditors ; and that in point of morality, he was most culpable. That Winston violated the principles of morality, is already implied, in the admission that he had committed a fraud ; hut that fraud is palliated and excused by reason of the imbecility of his situation. But how does the case stand with respect to Austin ? * * * * t0 gay the least, he hatched and brought to maturity a free and voluntary fraud to the injury of Winston’s creditors ; to say the truth, he capped the climax of his iniquity, by committing a double- fraud towards his companion. So little regardful was he of the rules of morality, that he has not even observed a maxim sacred among thieves and felons, £ to be just and honest towards one another / ” p. 44.

The rule we contend for was applied in this instance because the parties to the fraud stood in the relation of debtor and creditor. In Osborne vs. Williams, 18 Vesey, 379, Sir William Ghaut, applied the rule to a case in which the parties stood in the relation of father and son, both having been concerned in a fraud upon the Post Office Laws.

See also Reynell vs. Sprye, 1 DeG. Man. & G., 585. In Ford vs. Harrington, 16 N. Y., 285, and in two decisions in the Supreme Court of New York, (41 Barbour, 318, and 2 N. Y. Sup. Ct. Reps., 508 and 511,) the rule for which we contend, was applied to the relation of counsel and client.

We submit that no authority can be found to sanction the contrary doctrine.

We also refer the Court to the numerous decisions of tribunals of the highest resort at home and in England, cited in our original brief on the same question. Without discussing further than has already been done at the trial, the abundant evidence to be found in the record, that Roman concocted and executed the fraud in this case, and that Mali was a passive instrument in his hands, we submit that the Court should allow a further argument upon the interesting and important subject above discussed, with a view to consider whether the opinion of the majority can be reconciled with the current of English and American decisions.

Alvey, J.,

delivered the opinion of the Court.

In disposing of applications for re-argument, after the case has been acted on by the Court and the judgment has been entered, this Court has adopted the rule which obtains in the Supreme Court of the United States, as announced by the late Chief Justice Taney, in the case of Brown vs. Aspden, 14 How., 25; Kent vs. Waters, 18 Md., 53, 73; Johns vs. Johns, 20 Md., 58. That rule is, that no re-argument will be granted unless some member of the Court, who concurred in the judgment, doubts the correctness of his opinion, and desires a further argument on the subject, and not then unless the proposition receives the support of a majority of the Judges who heard the case ; (Ambler vs. Whipple, October Term Sup. Court, 1874, not yet reported;) and when that happens, the Court will, of its own accord, apprise the counsel of its wishes, and if it does not desire to hear further argument on the whole case, will designate the points on which it desires to hear them.

In this case, very full and able arguments were heard at the bar, and elaborate briefs were filed by both sides; and it was not until after the most careful consideration and repeated conferences upon the subject, that the conclusions were announced at which the Court arrived, though concurred in but by a bare majority of the Judges who heard the case. This division of the Judges, upon a question of so much importance, was certainly unfortunate, and very much to be regretted ; but no Judge who concurred in the judgment rendered is dissatisfied with his opinion, and therefore further argument is not desired ; and, indeed, if further argument than that heard at the bar were desired, we have it, on the part of the appellee, in the elaborate piloted argument in support of the motion for re-hearing. This latter argument has been carefully examined and considered, but the Judges who concurred in the judgment that has been rendered, fail'to find in that argument anything that causes them to doubt of the correctness of their previous conclusions.

In order, however, to avoid all possible misapprehension upon the subject, we deem it proper to state, that the general rule governing transactions between client and attorney is in no manner designed to be questioned, or in the slightest manner qualified or impaired by the decision of this case. Over such transactions Courts of Equity exercise the most exact scrutiny, and are always disposed to view them with more than ordinary jealousy. But in this case, the simple fact that Roman was an attorney can make no difference in considering the transactions between himself and Mali; and even if it be conceded that the relation of client and attorney existed between them, the rule does not go the length of absolutely avoiding transactions between parties standing in that relation. The attorney is under no actual incapacity to deal with or purchase from his client. All that can be required is, that there has been no abuse of the confidence reposed; no imposition or undue influence practiced, nor any unconscionable advantage taken by the attorney of the client. When a transaction between parties occupying such relation to each other is brought in question, the onus of the case is cast upon the attorney of showing that nothing has happened in the course of the dealing which might not have happened had no such connection subsisted, and that the transaction has been fair in all respects. If the Court be satisfied that the party holding the relation of client performed the act or entered into the transaction voluntarily, deliberately and advisedly, knowing its nature and effect, and that no concealment or undue means were used to obtain his consent to what was done, the transaction will be maintained. Such is the rule as deduced from the best considered cases upon the subject, and which is said to be dictated from motives of public policy. Gibson vs. Jeyes, 6 Ves., 266; Montesquieu vs. Sandys, 18 Ves., 302; Hunter vs. Atkins, 3 M. & K., 113; Edwards vs. Meyrick, 2 Hare, 60; Savery vs. King, 5 H. L. Cas., 627, 655; Sugd. on Ven. & Pur., (7 Amer Ed.,) 895.

But this wise and salutary rule, instituted to promote honesty and fair dealing, and which the Courts are always ready to uphold and enforce upon all proper occasions, was never designed to relieve a party in the position of the appellee in this case. It never contemplated relief to a dishonest client who has combined and confederated with his attorney to cheat and defraud his creditors. If the appellee occupied the position of a client whose confidence had been abused and taken advantage of in a transaction with his attorney, and the circumstances of his case were such as not to require him to allege and establish his own fraud, in order to reach and expose that of the attorney, the rule that has been stated would apply in its full force, and the Court would not hesitate in granting relief.

But what is this case? In brief it is this. In a particular crisis in Mali’s affairs, he desired to conceal and shield from the pursuit of his creditors his property, and to accomplish that object he combined with Roman, who was active in devising the fraudulent scheme whereby the property was effectually concealed and the creditors defrauded. The property was concealed under Roman’s ostensible and acknowledged ownership; and that ownership was held out and maintained by both Mali and Roman under all circumstances against Mali’s creditors, even to the extent of swearing, in the most positive and unequivocal manner, in a judicial proceeding, that Mali had no interest in the property whatever. Upon what terms or understanding this fraudulent combination between Mali and Roman was entered into, the record does not disclose ; but the scheme was most adroitly executed and maintained by the parties for nearly seventeen years, and until all the creditors designed to be cheated had been induced to surrender their claims, upon the supposition that Mali had no property, on payment of some nine or ten cents in the dollar. During all this long period, Mali not only acquiesced in, but maintained, against the most searching efforts of his creditors, Roman’s pretended ownership; and notwithstanding the many opportunities, and the strong honest incentives that should have induced him to withdraw from the combination and expose the fraud, there is no suggestion that he had been misled, unduly influenced, or imposed on, until after Roman’s death, when it was no longer feasible to maintain and carry on the fraudulent scheme that had been so effectually devised.

But it is said that Roman was Mali’s legal adviser, and that he devised and concocted the fraudulent scheme, and counselled Mali’s course in reference to it; and that, therefore, notwithstanding Mali’s fraudulent conduct, he ought to have the benefit of the rule governing transactions between client and attorney, and be relieved on principles of public policy. Whether Roman, in his character of attorney, was retained, at the commencement of the transaction, as the legal adviser of Mali, certainly admits of great doubt upon the proof before us. Mali himself has sworn positively that Roman was not his attorney. But if it be conceded that the relation of client and attorney did exist, then it is manifest that Mali had but one object in retaining Roman as his counsel, and that was to obtain the aid and assistance that the latter could render in evading and defrauding his, Mali’s, creditors; and though Roman was the more activo of the two in planning and executing the fraud, yet Mali was all the while approving and co-operating in it, and supported it throughout. Both were, therefore, in the contemplation of law, equally guilty; and the counsel for the appellee do not deny, ‘£ that the evidence shows that Roman and Mali were parties to a miserable fraud, conceived in sin, and matured on perjury.” It is also conceded by the counsel for the appellee that neither party lias shown any right in himself which a Court of justice ought to respect, and in this we entirely agree.

Such, then, being the case, it falls directly within the well established principle, that he who comes into equity must come with clean hands ; and if a party seeks to cancel or set aside an instrument, or be relieved of a transaction, or recover property, on the ground of fraud, and he himself has been guilty of a wilful participation in the fraud, equity will not interpose in his behalf. This principle, it has been said, is founded in the soundest wisdom and policy of the law, and it has been applied and enforced by the Courts with great uniformity. It was upon this principle that the Supreme Court of the United States acted in the case of Creath vs. Sims, 5 How., 192. In that case the Court said: “ The complainant alleges, that the obligation to which he had voluntarily become a party was intentionally made in fraud of the law, and for this reason he prays to he relieved from its fulfilment. This prayer, too, is preferred to a Court of conscience, to a Court which touches nothing that is impure. The condign and appropriate answer to such a prayer from such a tribunal is this, — that, however unworthy may have, been the conduct of your opponent, you are confessedly in pari delicto; you cannot he admitted here to plead your own demerits ; precisely, therefore, in the position in which you have placed yourself, in that position we must leave you.” And so we say to the appellee here.

(Decided 16th December, 1875.)

Motion for re-argument denied.