Brainard v. Singo

DOWDELL, C. J. This appeal is taken from an interlocutory decree on demurrer. The first ground of the demurrer goes to the equity of the bill as a whole, and according to the view we take of the case it is unnecessary to consider any other ground. The allegations of the bill show that the land in question originally belonged to George Singo-, deceased, who-by his last will and testament devised the same to the complainants; that Dorcas Singo, the widow of the said George, upon his death filed her petition in the probate court of Montgomery county to have the said lands set aside to her as a homestead; that respondent was employed by the complainants as an attorney at law to-contest said petition; and that respondent accepted said employment and represented complainants in the probate court on the contest of said petition. The bill further shows that the land was by the decree of the probate court set aside as a homestead to- said Dorcas. The-jurisdiction of the probate court is not questioned, and the fact that the said Dorcas was the widow of the said George Singo, deceased, was necessarily determined by the decree of the court setting aside the homestead toiler as such. There is no pretense that there was any [355] fraud or collusion between the respondent and tbe said Dorcas in the procurement of said decree. By the decree, under the statute, the title to the land vested absolutely in the widow, the said Dorcas. The bill shows that the contract of employment of the respondent as an attorney by the complainants terminated upon the rendition of the decree; that is to say, the relation of confidence and trust between client and attorney had ended. It is averred that shortly after the rendition of the decree setting aside the homestead, and within a few days, the respondent purchased the land from the .said Dorcas, for a consideration of $250, a sum greatly less than the true value, taking title to himself. The period of time elapsing between the rendition of the decree and the purchase by the respondent, whether long or short, in the absence of any charge of fraud or collusion between the respondent and the said Dorcas, can be of no significance. It is not claimed or pretended that the respondent acted for the complainants in the purchase of the land; but, on the contrary, it is alleged that he purchased for his own benefit. ■ The price paid, whether adequate or not, was a matter between the respondent and the said Dorcas, and did not concern the complainants, in the absence of any charge of fraud or collusion, as already suggested affecting complainants’ rights. The bill does aver that the respondent, in the proceedings before the probate court, “did not represent in good faith and to the best of his ability complainants’ interest at this time.” Such an averment falls short of charging the respondent with fraud. He might have represented the complainants with great ability and skill as an attorney, and yet, so far as is charged in the bill, the decree of the probate court would have been the same. The bill is fatally defective in the averment of facts sufficient to raise up a [356] trust between tbe complainants and tbe respondent in tbe purchase of tbe land and to call for an accounting. Nor are tbe facts stated sufficient to warrant tbe conclusion of fraud and collusion in tbe procurement of tbe decree in tbe probate court. Tbe bill in our opinion is wanting in equity, and tbe court erred in not sustaining tbe demurrer. Tbe decree of tbe city court will be reversed, and one will be here rendered sustaining tbe demurrer. Reversed and rendered, and remanded. Anderson, Saves, and Evans, JJ., concur.