Dunne v. Cunningham

Rugg, C. J. This is a suit in equity brought originally by Michael and Mary Dunne, husband and wife, and filed April 11, 1916. The defendant Cunningham is an attorney at law. The purpose of the suit is to secure a reconveyance of real estate conveyed to Cunningham under a foreclosure of a mortgage, the record title now being held by the defendant Tracy, on the ground that it was obtained by Cunningham through a breach of the trust reposed in him as their attorney by the plaintiffs. For convenience Cunningham will hereafter be referred to as the defendant. — 334 — Michael Dunne was adjudicated a bankrupt in June, 1913, and his trustee was joined as a plaintiff in this suit in December, 1916. The master reports that he “did not appear in these proceedings, and, so far as appears, has made no claim or demand upon the defendant in connection with any of the matters” set forth in his report. It must be assumed that this means that he did not appear in the hearings because manifestly he had appeared of record. The appeal is in behalf of all the plaintiffs and the brief is so signed. Whether the trustee in bankruptcy was of opinion that there was no ground for seeking a reconveyance from the defendant on the merits of the transaction or that his rights were affected by reason of the tenancy by the entirety of the plaintiffs, Hoag v. Hoag, 213 Mass. 50, Palmer v. Treasurer & Receiver General, 222 Mass. 263, need not be inquired. No argument has been addressed to us in behalf of the trustee as distinguished from the other two plaintiffs and his rights need not be separately considered. For convenience the word “plaintiffs” will be used herein as indicating Michael and Mary Dunne. The case was referred to a master. The plaintiffs took no exceptions to his report. Those of the defendant were overruled by an interlocutory decree, which also confirmed the master’s report and from which no appeal was taken. From a final decree dismissing the bill the plaintiffs appealed. The evidence is not reported. The facts found by the master must be taken as true. The only question is whether the final decree was warranted by the pleadings and the report of the master. Harrigan v. Dodge, 216 Mass. 461. . The plaintiffs, being the owners of the parcel of real estate in question, deeded it in November, 1910, to Bridget Dunne and after several conveyances the record title stood in the name of Christina O’Toole. The master has found that the purpose of these conveyances was to avoid the possibility that the land might be available for creditors of Michael Dunne. Christina O’Toole held the record title from February, 1912, until the foreclosure. The master has found that she held title to the property for the plaintiffs. She has not been made a party to the suit. The conveyance by the plaintiffs to her in fraud of the creditors of Michael was good as between the parties, upon familiar principles. Clapp v. Tirrell, 20 Pick. 247, 250. Dyer v. Homer, 22 Pick. 253, 256. Pollock v. — 335 — Pollock, 223 Mass. 382, 385. Lufkin v. Jakeman, 188 Mass. 528, 532. It is plain that the plaintiffs on the record had no title to the premises at the time of the foreclosure and no right to redeem. The rights of Christina O’Toole to the equity of redemption cannot be adjudicated in a suit to which she is not a party. Bridget Dunne has died and her heirs are not parties hereto. This ground is conclusive against the right of the plaintiffs to recover in this suit. The plaintiffs cannot show any right or title in themselves without showing first the conveyances of this property in fraud of creditors. Manifestly no relief can be afforded on this ground for they do not come into court with clean hands. The contention of the plaintiffs is that the defendant, being their attorney, was guilty of a want of fidelity to their interests and used his position to acquire their property in his own name to his own profit. The price he paid was substantially less than its real value. He has refused to reconvey it and contends that he was a purchaser in his own right. The master found that Michael Dunne and the defendant agreed that the latter should buy the property and own it absolutely and that Dunne was willing that he should do so in order that thereby he, Mr. Cunningham, might get pay for services rendered to the plaintiffs as attorney. There is a further express finding that there was no agreement that the defendant should hold the property, if bought by him, for the benefit of either of the plaintiffs, although the defendant did give Michael Dunne to understand that he would be assisted in bankruptcy. The defendant appears to have done all that under the findings of the master he agreed to do to aid the plaintiffs or either of them. However that may be, there is no finding that in connection with the foreclosure sale the defendant acted or promised to act for either of the plaintiffs. The relation of attorney and client is highly fiduciary in its nature. The attorney is not permitted to take any advantage of his client. The principles holding him to a conspicuous degree of faithfulness and forbidding him to take any personal advantage of his client are well established and have recently been fully stated and rigorously applied. Manheim v. Woods, 213 Mass. 537. Kelly v. Allin, 212 Mass. 327. Rolikatis v. Lovett, 213 Mass. 545. Arnold v. Maxwell, 223 Mass. 47. Hill v. Hall, 191 Mass. 253. — 336 — Boston Bar Association v. Hale, 197 Mass. 423, 437. They are recognized as binding in all their amplitude. It is not now necessary to enlarge upon them further. The facts here found do not bring the case at bar within their sweep. The master finds that up to the time of the foreclosure the defendant acted with absolute fidelity to the plaintiffs as clients. This relation had chiefly grown out of business entanglements of the plaintiff Michael with his creditors and had involved work covering a period of nearly three years for which he had received no compensation, but which, including services in connection with bankruptcy, were worth $500. The plaintiffs did not depend upon the defendant to act for them in connection with the foreclosure. They did not refrain from taking steps to protect their own interests in the matter by reason of anything said or done by him. All the mortgages upon the property amounted to almost as much as its value. They paid no part of the consideration all of which was paid by the defendant. Under all the circumstances it cannot quite be said that the defendant held the title in trust for the plaintiffs. Collins v. Sullivan, 135 Mass. 461. Bourke v. Callanan, 160 Mass. 195. Kennerson v. Nash, 208 Mass. 393. Carter v. Exchange Trust Co. 220 Mass. 543. Decree affirmed.