Davis v. Smith , 43 Vt. 269 ( 1870 )

The opinion of the court was delivered by

Wheeleb, J.

By what had taken place between the defendant and Putnam and wife concerning the farm in controversy, the defendant had eight hundred dollars in money that he had been paid by Putnam, which he held subject to his liability to Putnam and wife for it, and held the legal title to the farm, subject to the rights that Putnam and wife had acquired in it. When the orator purchased the interest of Putnam and wife, they were claiming the eight hundred dollars of the defendant, and were endeavoring to enforce their claim by suit at law. The defendant was resisting their claim and defending the suit, was claiming that they had no right to the farm without performance of the contract of purchase, and was endeavoring to enforce his claim and foreclose their right by a suit in equity; and the orator had been retained for the defendant as legal adviser in this litigation, and was the attorney and counselor of the defendant in the suit at law, and the solicitor of the defendant in the suit in equity. The title to, and ownership of, the farm and the right to this money were all involved in this litigation. The orator was an attorney of one of the courts and a solicitor of the other in which the suits were pending, and as such was an officer of each of those courts. The office of an attorney or solicitor is a very important one to parties who have occasion to employ them in litigation pending before courts of which they are officers and before which they practise. When so employed, the party employing them has the right to -their services about the litigation in his behalf, and the right to confide to them all facts concerning the subject of litigation, in order that their services may result to his best advantage, without being exposed to having the facts used by the person employed in any manner against his advantage. The office and the duties belonging to it, and their necessity to the administration of justice by courts, are recognized by law, 'and the obligations of those who hold the office, to their clients as well as to others, are enforced by solemn oail. When .the orator was retained by the defendant in this litigation, he took upon himself the duty of performing the obligations of his office for the defendant in all things pertaining to it about the litigation. Whatever facts were confided to him by the defendant in the progress of the litigation, concerning it or the subjects of it, he was bound to use for the benefit of the defendant, and not to use for himself or any other person to the prejudice of the defendant. When he purchased the interest of Putnam and wife in the subjects of litigation, he stood in the place they had stood in with reference to the litigation. The interest he acquired was adverse to that o'f the defendant, after he got it, the same as it was while Putnam and wife had it, and he became interested to resist for himself what he had undertaken to promote for the defendant, and to promote for himself what. he had undertaken to resist for the defendant. All facts confided to him by the defendant were in his possession, and he could use them against the defendant in any litigation that he should be allowed to carry forward to enforce the claims he had bought against the claims of the defendant. After the purchase he stood in the same relation to the interests of the defendant involved in the litigation that he would have stood in if, before the purchase, he had abandoned the defendant and had accepted a retainer from Putnam and wife. If he had done so, he would not have been allowed to appear for and assist Putnam and wife in the litigation, because it would have been a gross violation of his duty to the defendant, and of the right of the defendant not to have his own counsel carry the knowledge acquired of his interests in the litigation to the assistance of his adversary. The defendant has the same rights now that he would have had then. By purchasing the interest of Putnam and wife the orator neither acquired any right of the defendant or deprived him of any. The orator would have had no standing place in court from which he would have been heard in behalf of Putnam and wife against the defendant, and has none now from which he has a right to be heard, in the same interest, against the defendant, in behalf of himself. By the purchase he acquired no right upon which he can stand to contend against the defendant, for either the farm or the money, against the wishes of the defendant. ,

It appears from the testimony that at one time when the orator, Putnam and the defendant were talking together about the litigation, the defendant said that all he wanted was his money. The orator heard and knew of this saying, and now claims that the defendant, because he said that, ought not to be upheld in claiming anything but his money, and that the orator, having offered him his money, ought to have the farm. . But the defendant did not make this statement to influence the orator to do anything for himself on the strength of it, nor in view of any action by the orator in regard to it: He made it to influence Putnam, and not to influence the orator, and it does not appear to be anything but a statement of his claim made to give Putnam to understand that he would not put an end to the contract and keep the farm except on terms favorable to himself. The orator could not rely upon the statement so as to bind the defendant to make the reliance good, without informing the defendant that he was about to rely upon it. It does not appear that he did so inform the defendant, but railer that he did not. The rights of these parties stand therefore the same as if the statement had-not been made. These conclusions as to the rights of the parties make it unnecessary to determine the disputed question of fact as to whether the defendant expressly requested the'orator to purchase the interest of Putnam and wife or not, and whether the orator did purchase it in pursuance of that request or not, for upon the case made by the pleadings and the testimony on the part of the orator alone, the orator acquired no right by the purchase that he can enforce by judicial proceedings against the defendant. The claim of the orator, made in this suit, rests wholly upon that purchase, and as he acquired no right by the purchase upon which he can stand to ask relief, the relief asked must be denied.

The defendant had employed the orator to advise him about the subjects of the purchase, and to act for him .in the suits concerning them. They were directly involved in the litigation, and the defendant might reasonably have desired to make the purchase himself, or to have had it made for him, to promote his interests in the litigation. He had a right to make it, or to have it made for him, if he could. The orator, having made it, although he made it for himself, it being made without right as against the defendant, could not hold it from the defendant against a claim of it by the defendant, upon an election by him to treat it as if made for him. It appears that the defendant did elect to take the purchase, and undertook to pay the orator the cost of it, and in pursuance of the undertaking tendered to the orator such a sum of money as he supposed would be equal to the cost. After these things had been done the orator held the interest he acquired by the purchase for the defendant, and was entitled to have what he paid for it of the defendant. The defendant recognized all the rights of the orator against him and did all he could to satisfy them. The orator would not be satisfied with what the defendant did and was willing to do towards him, but claimed to hold the interest he had acquired of Putnam and wife'against the defendant, and instituted this suit to enforce this claim. The court of chancery dismissed the bill with costs, and if that decree should stand, the defendant would be left exposed to further litigation of the claims which Putnam and wife had, in their name, for the benefit of the orator, and the liability of the defendant for the cost of the purchase would be left unsettled. Although the orator probably would not undertake to, nor be allowed to, appear in and conduct any suit in the name of Putnam and wife against the defendant, on these claims, as counsel, yet he would be interested in them and in any suit to enforce them the same as he is in this suit, and in such suit the defendant would be at the disadvantage of having to contend with his own counsel, the same as he would have had to in this suit, if the orator could have stood upon and contended for the intefests he bought of Putnam and wife. No right to or interest in the subjects involved remains to Putnam or his wife, for the orator purchased all their right and interest of them. The orator and the defendant own all the interests involved, and each is entitled to have the rights of each settled and adjusted in this case so far as properly can be. Upon payment by the defendant to the orator of the cost of the purchase, no right to or interest in the subjects involved will remain to the orator, for then the defendant will have taken to himself, and paid for, all the right and interest acquired by the orator, according to his right. The legal title to the farm, subject to these claims, is now in the defendant, and a decree denying the claims of the orator to the farm upon payment of the cost of purchase will settle all the rights of the parties and all their liabilities to each other, except as to rents and profits of the farm, so far as they are here concerned. The orator, having taken possession of the farm under the purchase from Putnam and wife, against the right of the defendant, is bound to account to the defendant for the rents and profits of it while in his possession, upon payment by the defendant of the cost of the purchase. The amount of the rents and profits should be taken from the amount to be paid to the orator, and then each will be paid without circuity. An account of the rents and profits is necessary to this adjustment, and being necessary for that purpose, can be properly taken in this suit. A decree denying the claims of the orator upon payment of the cost of the purchase to him and allowing the defendant the amount of these rents and profits as ascertained upon an accounting, will settle all the rights of the parties involved in this litigation. Such a decree cannot be made without reversing the decree of the court of chancery. The reversal of that decree is of no importance except as to costs. Ordinarily when a decree- of the court of chancery is reversed in this court, the party who appealed recovers the costs of this court. But in this, case the defendant prevails upon all the issues litigated in the case and to a greater extent in this court than in the court of chancery. He has substantially prevailed upon the appeal, and notwithstanding the reversal of the decree, is entitled to the costs of this court as well as of the court of chancery.

Decree of court of chancery reversed and cause remanded with mandate made to conform to these conclusions.