Smith v. Brotherline

The opinion of the court was delivered, 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. [470] 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 county in 1822. He could grant no such title for lands beyond the then ascertained and settled limits of the county, and a subsequent change in them could not enlarge the right of the purchaser. Hence it became a question what was the county line in 1822, as the Barton surveys lay upon the boundary. Cambria county was erected and laid off from parts of Huntingdon and Somerset by the 6th section of the Act of Assembly of March 26th 1804 (4 Sm. Laws 171), and so far as the line in question is concerned, it was therein described as from “ the south-westerly corner of Centre county on the heads of Muskakon creek southerly along the Allegheny Mountains to Somerset and Bradford county linesand by the 7th section the governor was directed, as soon as convenient, to appoint three commissioners to run the lines. Either this was never done or no [471] record was made of it. At all events, an Act of Assembly was passed on March 29th 1849 (Pamph. L. 260), appointing James L. G-win, of Blair county, and E. -A. Yickroy, of Cambria county, “ to correctly run and distinctly mark the boundary line or lines between the counties of Blair and Cambria, agreeably to the Acts of Assembly defining the boundaries of said counties.” They were directed to transmit a copy of their report and plots to the commissioners of each county. These duties were performed by them. Some evidence was given of a survey of part of the line previously, but the authority under which it was made did not appear. ,No witness could identify' any marks on the ground. The jury were instructed that if there was no other line than that indicated by the Act of Assembly erecting the county, then the fixing that line by the commissioners appointed for that purpose by the Act of 1849 should be regarded as indicating where it was and had been, unless there was evidence which showed that the officers of the county at the same time recognised another. No error has been assigned on this part of the charge, and the verdict was for the plaintiff “ for all the land lying in Cambria county down to the line established by Mr. Gwin and E. A. Yickroy in the year 1849.” Now, if the jury had found any other line in this general way, and referred to by the evidence, oral or written given on the trial, without describing it with reasonable certainty, it might have been bad according to Hagey v. Detweiler, 11 Casey 409; O'Keson v. Silverthorn, 7 W. & S. 246. But these cases recognise it as settled that the verdict may describe a tract by reference to something of a permanent and public nature, as a recorded deed or a diagram filed in court, like the draft of a road in the Quarter Sessions. Indeed, this court went much further, and held, in Tyson v. Passmore, 7 Barr 273, that a verdict for eighty-two and a half acres of land, being the land covered by the warrant of survey of July 1882, was sufficiently certain. If the verdict enables the court to give judgment, and the sheriff to deliver possession when that is required in a habere facias possessionem, it will not be disturbed. Oportet quod res certa deducatur in judicium, but id certum est quod certum reddi potest: Green v. Watrous, 17 S. & R. 393. Now nothing can well be stated more clearly falling within these principles than the public recorded boundary line of a county made under an Act of Assembly and filed with a plot in the office of the commissioners. Judgment affirmed.