Eckrote v. Myers

Beck, J. A law firm, of which defendant was a member, received for collection certain notes owned by plaintiff and secured by a mortgage upon lands. This was in 1860. They, instituted proceedings promptly, and within proper time recovered a decree of foreclosure. They kept defendant informed of the progress of the business and advised him that they found it necessary to advance money for fees in the prosecution of the action, for which they often demanded of defendant that he should reimburse them. No response was made to these demands. After the decree was entered they advised plaintiff of the fact, and informed him the sale therein would not be had until the amount of fees which would accrue in the sale should be sent them. They also demanded payment for sums already advanced. In 1863, the land being oifered for sale for taxes, the attorneys bid it in, of which they advised plaintiff and demanded to be reimbursed for the amount of this outlay, together with prior advances. It was bid in by the attorneys to prevent the title passing into the hands of others. No response was made to these frequent'demands for.money justly due the attorneys. In 1865 defendant, having taken an assignment of the tax certificate from his associates, received a treasurer’s deed for the land. No execution was issued upon- the decree for the [328] reason that fees and expenses which would' accrue upon the sale were not provided by plaintiff, and he made no payment of advances made by the attorneys, or the amount due them for their services. Thus the matter remained until 1872, when this suit was commenced. The facts stated appear in the record, and are undisputed. Plaintiff asks that the tax title held by defendant be set aside, and that there be an accounting, and the amount found due him for advances be determined, which plaintiff proposes to pay. 1. attobney: client?11 t0 There can be no dispute as to the obligation of an attorney to protect the interest and rights of his client in matters pertaining to his employment. > The rules upon this subject, as heretofore announced by this court, and which prevail in the books, we would not disregard nor. abate anything therefrom. He is bound to the utmost good faith while the relation of attorney and client exists, and can take no advantage of that relation to advance his own interests. Property acquired by him by means of this relation he holds as trustee of his client; and any bad faith in the discharge of his duty cannot work prejudice to the rights of his client and enure to his benefit. Without stating more fully the obligations and rights existing between the client and attorney by virtue of their relation, we may say that we have no occasion or inclination either to abridge or limit them. But the attorney has rights as well as the client, and while he is bound to the exercise of good faith his client is not relieved therefrom — the same rules of honesty and fairness govern 'both. The client cannot take advantage of the relation existing between him and his attorney to wrong the one whose services he has engaged. The failure of the attorney to discharge his duty, or an attempt on his part to wrong 'the client, will authorize the latter to regard the relation as terminated and act accordingly. So the attempt of the client to defraud his attorney will authorize him to sever the relation and act for the protection of his own interest. 2._:-: rule applied: The attorney in this case for more than four years was urgent and persistent in his demands for the repayment of money which he had advanced. He [329] advised his client that he had bought in the tax title, and demanded of him the money so advanced, but in no case received any response. Surely there should be a limit to forbearance in such a case. The attorney, after the lapse of three years from his last advance and demand for money, was justified in regarding his relation to liis client severed by the negligence, if not bad faith, of the latter. Tie was authorized to presume that the client had abandoned him and the case, or was in bad faith acting with a view to avoid the payment of the amount justly due the attorney. Being authorized to treat the relation of client and attorney severed he could, in good faith without being responsible to his client, take a deed for the land under the purchase at the tax sale as he did. Seven years after the deed, and ten years after he should have paid the attorney the sums advanced, he awakes to a knowledge of his rights and insists upon enforcing obligations arising under a relation that his negligence or bad faith had years before severed. He does not come into chancery with clean hands; there is no equity in his case. Affirmed.