Holman v Loynes
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1854 |
| Date | 01 January 1854 |
| Court | High Court of Chancery |
English Reports Citation: 43 E.R. 510
BEFORE THE LORD CHANCELLOR LORD CRANWORTH AND LORDS JUSTICE TURNER.
S. C. 23 L. J. Ch. 529; 18 Jur. 839; 2 W. R. 205. See Pisani v. Attorney-General for Gibraltar, 1874, L. R. 5 P. C. 536; M'Pherson v. Watt, 1877, 3 App. Cas. 271; Wright v. Carter [1903], 1 Ch. 53.
[270] holman v, loynes. Before the Lord Chancellor Lord Cranworth and Lord Justice Turner. Dec. 14, 1853 ; Jan. 25, 1854. [S. C. 23 L. J. Ch. 529 ; 18 Jur. 839 ; 2 W. R. 205. See Pisani v. Attorney-General for Gibraltar, 1874, L. E. 5 P. C. 536 ; M'Pherson v. Watt, 1877, 3 App. Cas. 271 ; Wright v. Carter [1903], 1 Ch. 53.] An attorney was engaged in the sale of his client's property by auction, on which occasion a small portion only of the property was sold. He was subsequently 4DEQ.M. &0.271. HOLM AN V. LOYNES 511 employed in making out abstracts of title of the portion unsold, and sixteen months after the completion of the abstracts, during which term there had been no employment of the attorney professionally by the client, the attorney bought a portion of the unsold property, and debited the client in his books for drawing the agreement for sale. The consideration which was on the face of the purchase-deed stated to have been paid, was in fact composed partly of a previous debt for costs, and partly of such an annuity as the balance of the purchase-money would, according to the Government Tables, obtain for a healthy life. The client died three years and a half after the sale. It was in evidence that the client was of intemperate habits for many years previously and up to the transaction in question. It did not appear that the attorney had made any special inquiries as to the state of health of the client, or endeavoured in any other quarter to obtain a higher annuity, which from the intemperate habits of the client might in all probability have been procured. Held, on a bill filed by the heir at law of the client, to set aside the transaction, that the relation of attorney and client subsisted at the time of the sale, and that the attorney had failed to shew that no industry he was bound to exert would have got a better bargain for his client, and the sale was accordingly set aside. This was an appeal by the Defendant, a solicitor, from the decree of the Vice-Chancellor Stuart, setting aside, at the suit of the heir at law of the vendor, two purchases by the Defendant of real estate, on the ground that the relation of attorney and client subsisted at the time of the sales, and that the Defendant had not duly protected the interests of the Plaintiffs ancestor. The material circumstances of the case, and the several points raised on the hearing of the appeal, are sufficiently stated, for the purpose of this report, in the judgment of the Lord Chancellor. Mr. Daniel and Mr. Wickens, for the Plaintiff, the Eespondent. Mr. Willeock, Mr. J. H. Taylor and Mr. Spinks, for the Defendant, the Appellant. Mr. Wickens, in reply. The following cases were cited and commented upon in [271] the argument: Gibson v. Jeyes (6 Ves. 266); Cults v. Salmon (4 De G-. & S. 125); Wood v. Downes (18 Ves. 120); Montesquieu v. Sandys (18 Ves. 302); Cane v. Lord Allen (2 Dow. 289) ; Edwards v. Met/rick (2 Hare, 60); Jones v. Thomas (2 Y. & C. 498); Austin v. Chambers (6 Cl. & Fin. 1). the lord chancellor [Cranworth]. The bill in this suit was filed by the Plaintiff, as heir at law of Charles Holman, to set aside two sales of real estate made by Charles Holman to the Defendant, who is an attorney. The grounds upon which the sales are impeached are the alleged relationship of attorney and client, and that the Defendant did not duly protect the rights of the Plaintiff's ancestor in the transactions in question. The first sale impeached took place in the month of July 1848, the second in December 1850. In 1846 there had been an attempted sale by auction of the whole of the property of Charles Holmau; on which occasion it was put up for sale in nine lots, but only one of the lots was then sold. In the mouth of July 1848, Charles Holman sold to the Defendant four of the lots; the consideration being expressed to be 600, though only 260 can be said to have been paid, and an annuity of 40 for the life of Charles Holman. In December 1850, there was a sale of the remaining four lots to the Defendant, the consideration for which was an annuity of 26, on similar terms. In February 1852, Charles Holman died. In June 1852, the present bill was filed. The defence is, first, that the relation of attorney and client did not subsist; and, secondly, that if it did subsist, the conduct of the Defendant was altogether proper. Now, if the relation of attorney and client subsisted, the rule of law I take to be clear, that there is nothing [272] absolutely preventing an attorney purchasing from his client, but then he assumes very heavy responsibilities; he cannot sustain his purchase " unless he can prove that his diligence to do the best for the vendor has been as great as if he was only an attorney dealing for that vendor with a stranger." This is the language of Lord Eldon, in Gibson v. Jeyes (6 Ves. 266 ; see p. 271) ; and a little further on, in the same page, the same very learned Judge says, "But from the general danger the Court must hold that if the attorney does mix himself with the 512 HOLMAN V. LOYNES 4 DE O. M. te 0.273. character of vendor, he must shew to demonstration (for that must not be. left in doubt) that no industry he was bound to exert would have got a better bargain." What we have to decide, therefore, is, first, the question of fact, did that relation subsist which creates the obligation? and, secondly, if it did, then whether the Defendant duly discharged the duties which attach upon such a relationship. The first question is one of fact, and the burden of proof is on the Plaintiff. I think he has fully made out the proposition for which he contends, namely, that the Defendant was the attorney of Charles Holman within the meaning...
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