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The question as to what is the position of an the court ordered him to pay his client the balance, Indian who maintains his tribal relations in respect $1,350.98. This disposition of the case is in acto the laws of the United States, and what the cordance with Bowling Green Savings Bank v. Todd, status of the offspring of intermarriage between 52 N. Y. 489, where it is held that an attachment Indians and whites, was recently passed upon by may be issued against an attorney who retains money the United States District Court for the Western that belongs to his client and refuses to pay it over, District of Arkansas, in the case Ex parte Reynolds, and that even good faith is no exemption from such in which application was made by habeas corpus for remedy, as the court, in that case, says:

“The law the release of an Indian charged with murder, com- is not guilty of the absurdity of holding that, after mitted in the Indian territory, on the ground that a client has spent years in collecting through his atthe court did not have jurisdiction to try the case. torney a lawful demand, he shall be put to spendThe court held that Indians who maintain their ing as many more to collect it from his attorney, and tribal relations are the subjects of an independent if that attorney should not pay, then try the same government, and as such, not in the jurisdiction of

track again.” And in Re Paschal, 10 Wall. 491, it

is said by the Supreme Court of the United States, the United States. The Indian tribes are treated as

that for refusal by attorneys to pay money collected sovereign communities, but when the members of a for their client in a suit, “ the court may entertain tribe scatter themselves among the citizens of the summary proceedings by attachment,” United States, they become merged with the people ment, or discharge them from the functions of their

in its discretion, punish them by fine and imprisonowe complete allegiance to the government, and offices, or require them to perform their professional are entitled to equality with other citizens. When or official duty under pain of discharge or imprisonthere is offspring from a union between an Indian ment." 4 Blackst. Com. 288. See, also, Barry v. living with his or her people in the tribal relation, Whitney, 3 Sandf, 696; Grant's Case

, 8' Abb. Pr. and a citizen of this country, the status of such off- 4 Hill, 564; Sarton v. Wyckoff, 6 Paige, 182; Wil.

357; Hess v. Joseph, 7 Robb, 609; Ex parte Ketcham, spring is that of the father. The rule partus sequiter merdings v. Fowler, 14 Abb. Pr. (N. S.) 249; Merritt patrum which is adopted by the common and civil v. Lambert, 10 Paige, 352. law, and by the law of nations, governs in such a The case of the United States v. Sanders, nished to a theatre of a pattern that had to be made

In Grosz v. Jackson, 6 Daly, 463, chairs were furHempstead, 486, holds that the status of the mother with special reference to the size, shape, and plan of governs that of the offspring. This is the rule the auditorium of the theatre in which they were to when applied to the offspring of freemen and slaves, be placed, and were screwed to the floor, as they upon the principle of the civil law, that the owner

could not stand alone. The court held that they of a female animal is entitled to her brood, but it is lien could be filed and enforced against the building

formed a part of the building, and that a mechanic's reversed when applied to the offspring of two free by the one furnishing them. In Potter v. Cromwell, persons. See Ludlum v. Ludlum, 31 Barl). 486, 40 N. Y. 287, 297, and Voorhees v. McGinnis, 48 id. where it is said that “the universal maxim of the 278, three tests are given whereby the question

whether a given article has become by annexation a common law being partus sequiter patrum it is suf

part of the freehold: 1. To give to articles, perficient for the application of this doctrine, that the sonal in their nature, the character of real estate, father should be a subject, lawfully and without the annexation must be of a permanent character. breach of his allegiance, beyond sea, no matter what There are exceptions to this rule in those articles

which are not themselves annexed, but are deemed may be the condition of the mother."

to be of the freehold, from their use and character,

such as mill stones, statuary, and the like. Capen The right of trial by jury does not apply to every v. Peckham, 35 Conn. 88; Teaff' v. Heritt, 1 McCook, case. If a lawyer fails to pay over moneys collected

511. 2. A second test, but not so certain in its in a suit for his client, the court may summarily or

character, is that of adaptability to the freehold.

Voorhis v. Freeman, 2 W. & . 116; Pyle v. Pender him to do so, and if he claims a lien on the nock, id. 390. 3. A third test is that of the intenmoneys, for services rendered, he cannot ask for a tion of the parties at the time of making the anjury to determine the question, but it must be nexation. See cases above cited, and Murdock v. settled by a reference. That is the decision of the Gifford, 18 N. Y. 28; Winslow v. MerchantsIns. Co.,

4 Metc. 306; Swift v. Thompson, 9 Conn. 63. The New York Court of Common Pleas in the case

English cases go further than the American in the Matter of Fincke, 6 Daly, 111, where an attorney, direction of the principles stated. Walmsely v. Milne, who had received $2,665.08 on a partition suit, re- 7 C. B. (N. S.) 115; Boyd v. Shorrock, L. R., 5 Eq. 72; fused to pay any part of the same over to his client, See, also, Ford v. Cobb, 20 N. Y. 344; Cresson v:

Climie v. Wood, L. R., 3 Exch. 257, and 4 id. 328. claiming that he had 'performed services for her Stout, 17 Johns. 116; Vanderpoel v. Van Allen, 10 worth that amount. The court, upon the applica- Barb. 157; Swift v. l'hompson, 9 Conn. 63; Walker tion of the client, issued an order to show cause V. Sherman, 20 Wend. 636; Taffe v. Warnick, 3 why the amount should not be paid over, and upon

Blackf. 111; Tobias v. Francis, 3 Vt. 425; Gale v.

Ward, 14 Mass. 352; Ilutchinson v. Kay, 23 Beav. the appearance of the attorney ordered a reference 413. In Re Dawson, 16 W. R. 424. Also Pierce v. of the matter. The referee reported that the at

George (108 Mass. 78), 11 Am. Rep. 310, and note at torney had performed services worth $1,314.10, and page 314, where the various authorities are collated. be seeking to overreach and defraud his child. CONSTRUCTIVE FRAUD.

Whereas, the presumption ought to be, in the absence T is a well-established if not a beneficent princi- of all proof tending to a contrary conclusion, that the

ple of equity jurisprudence that gratuitous bene- advancement of the interest of the child was the fits, as between persons occupying certain confi-object in view; and to presume the existence of cirdential relations to each other, are to be deemed cumstances conducing to that result. * The constructively fraudulent, and only supported by natural and reasonable presumption, in all transacthe clearest proof of equity and good faith. The tions of this kind, is that a benefit was intended relations to which equity applies this doctrine are the child, because in the discharge of a moral and those of guardian and ward, trustee and cestui que parental duty." trust, principal and agent, attorney and client, The same doctrine is enunciated in the celebrated physician and patient, clergyman and parishioner. case of Hunter v. Atkins, 3 M. & Keene, 113, which These, it will be perceived, are all relations of a con

was a case of confidence arising merely from intiventional character. Whether the same doctrine is

mate friendship. In this case Lord Brougham applicable to the natural relation of parent and child recognizes the distinction between the conventional has been somewhat mooted, and it is our present and the natural relation. In regard to the former, purpose to examine this question.

he observes: “If a person standing in these relaStory, in his Equity Jurisprudence, section 311, in

tions (of attorney, guardian or trustee) to client, speaking of a transaction between attorney and client, ward, or cestui que trust, takes a gift or makes a thus lays down the general rule: “The burden of bargain, the proof lies upon him that he has dealt establishing its perfect fairness, adequacy, and with the other party, the client, ward, etc., exactly equity, is thrown upon the attorney, upon the gen- as a stranger would have done, taking no advantage eral rule that he who bargains in a matter of ad- of his influence or knowledge, putting the other vantage with a person, placing a confidence in him, party on his guard, bringing every thing to his is bound to show that a reasonable use has been knowledge which he himself knew.” In regard to made of that confidence; a rule applying equally to confidential relations, other than the conventional all persons standing in confidential relations with

ones, he says: “the party seeking to set aside the each other. If no such proof is established, courts deed may not be called upon to show direct fraud; of equity treat the case as one of constructive fraud.” but he must satisfy the court by the circumstances It will thus be seen that Story makes no distinction that some advantage was taken of the confidential between the cases of conventional and those of relation." natural relations. The English cases universally This distinction, so far at least as regards gifts apply this doctrine to cases of gifts from child to from parent to child, has never to our knowledge parent. There are many dicta, also, to support this been dissented from in England or America, alidea, and yet there would seem to be a reasonable though there has been some contrariety of opinion ground of distinction, and for the application of as to the converse case of gift from child to parent. that author's further inculcation, in section 309 of And even in that case, we think it will be difficult the same work, that “we are not to indulge undue to find a decision, as distinguishable from mere suspicions of jealousy, or to make unfavorable pre- dictum, holding an opposite doctrine to that of sumptions as a matter of course in cases of this Jenkins v. Pye.

Except in cases where the evidence

shows a probability or the certainty of unfair dealIn support of this latter quotation the author cites ing and overreaching, the general rule of the burthe case of Jenkins v. Pye, 12 Pet. 253, where the den of proof seems to be as in ordinary cases of Supreme Court of the United States declare that fraud — the person alleging it must prove it. Such they would "not be disposed to adopt or sanction we believe to be the result of the New York cases, the broad principle contended for, that the deed of as for instance the case of Sears v. Shafer, 6 N. Y. a child to a parent is to be deemed prima facie 268, where it is said: “A court of equity will set void." In that case the court say: "It is undoubt- aside a deed obtained by persons standing in such edly the duty of courts carefully to watch and ex- relation to the grantor as to give them a controlling amine the circumstances attending transactions of or very strong influence over the conduct of such this kind, when brought under review before them, grantor, upon slight evidence of the improper exercise to discover if any undue influence has been exer- of such influence." cised in obtaining the conveyance.

But to consider In Whelan v. Whelan, 3 Cow. 538, it was held that a parent disqualified to take a voluntary deed from where a grant is made by an aged father to his his child, without consideration, on account of their children with whom he lives, who bave the managerelationship, is assuming a principle at war with all ment of his property, and in whom he reposes parfilial as well as parental duty and affection, and act- ticular confidence, if a court of equity sees that any ing on the presumption that a parent, instead of arts or stratagems, or any undue means, or the least wishing to promote the interest and welfare, would I speck of imposition, or the least scintilla of fraud


for us.”

entered into the bargain, it will avoid the grant. ing eighty-three years old, and sick of a fever at It is true that there are many expressions to the con- the time, executed deeds of all his property to his trary in Comstock v. Comstock, 59 Barb). 453, a case children, excluding the son of a deceased child, of a deed from a child to a parent, but there was contrary to his previously declared intention. The ample proof in that case to raise the presumption of following instructions, among others, were reç ed: fraud and undue influence. See page 470.

“2. That the circumstances attending the execuSimilar expressions by Mr. Justice Hunt, in Nes- tion of the Holman deed — the facts that Holman at bit v. Lockman, 34 N. Y. 167, are entirely obiter. the time had charge of the grantor's affairs ; that he The gift was sustained by the court on the finding helped to carry the chain; that he accompanied the of the referee, that it was made without the exer- grantor to Stephen Morse's house, and remained cise of any fraud, deceit or undue influence, which present while the deed was written and executed, finding, the court say, “must settle the question and accompanied him back; that the memorandum

Besides, this was a gift to the clerk of the of the courses and distances was given to his daughdonor's attorneys.

ter, and that the grantor's wife did not sign the Bergen v. Udall, 31 Barb. 9, was a case where a deed — raise a presumption of fraud and undue indaughter, on coming of age, was induced by undue fluence. 3. That the circumstances attending the persuasion to make a voluntary conveyance to her execution of the deeds to the three sons at Elbridge's father, and the facts clearly showed undue influence house the facts that the documents were prepared and overreaching

by Elbridge's dictation, by an attorney employed by Brock v. Barnes, 40 Barb. 521, was a case of at- him, and who never saw the grantor nor communitorney and client, where the former obtained from cated with him; that they were executed in Elthe latter, an aged, infirm, and feeble man, in 1859, bridge's house in the presence of himself and his a grant of an annuity extending back in its oper- family; that Elbridge brought the justice to his ation to 1836, the instrument not being in the client's house, who only stayed long enough to put the writing nor witnessed, and there being also evi- formal questions and receive a nod or word in reply; dence of a settlement between the parties in 1858. that they were not read over to him; that the grantor's

Powers v. Powers, 48 How. 389, was a case where wife did not execute the deeds ; that they embraced the plaintiff, just on coming of age, conveyed to his all his real estate; and that there was executed at mother, for $5,000, his interest in his deceased the same time a bill of sale of all his personal propfather's estate, and evidence of misrepresentation erty; that Elbridge had charge of the grantor's affairs was disclosed. Even in this case, the court say, at the time under a power of attorney; and that the at page 395: “The courts in this country have transaction was contrary to the grantor's previous not gone so far as they have in England to establish declarations of his intention that the petitioner any presumption of law against the validity of such should be remembered in the disposition of his estransfers, but they will not sustain such a transac- tate, and have the Berlin wood lot — raise a pretion, where it appears that any advantage has been sumption of fraud and undue influence.taken of the inexperience of the child, or of the The court remark: “ The facts set forth in the confidence naturally reposed by a child in the sug- second and third prayers for instructions were subgestions, advice, and judgment of a parent."

mitted to the jury as evidence of fraud and undue Brice v. Brice, 5 Barb, 533, was a case of a deed influence. There is no legal presumption arising from from an old and feeble father to his son and confi- them, but only a presumption of fact, etc.”

“ Infludential agent, for the mere consideration of a sup. ence properly gained, although used for a selfish port for life. It affirmatively appeared that the son purpose, and to obtain an unfair and unjust advant“had acquired great and controlling influence" age, will not avoid a deed thereby obtained, unless over the father, and that the son and a brother-in- there is fraud or duress, or the influence is exerted law procured the deed by representing to the old | by a stronger mind over a weak one, in such a man. gentleman that he was old and foolish, and alluded ner and to such a degree as to substitute the will of to his having signed improper papers, thus "art- the person exerting the influence in place of that of fully appealing to his fears, and betraying the child him upon whom it is exerted, so that the latter is like confidence he reposed in them.

no longer a free agent.” These are the principal New York cases bearing In Sanfley v. Jackson, 16 Tex. 584, the court, after upon this question, and it will be noted that in conceding the general rule of the burden of proof, every one of them there was affirmative evidence on in case of confidential relations, proceed: the part of the person seeking to avoid the gift or is clear that this rule was never applied, either qualiobligation, of fraud, deceit, bad faith, or undue in- fied or unqualified, to a deed or gift from a parent fluence in obtaining it.

to a child; and the reverse of such principle has alIn Massachusetts we find an instructive case in ways been sustained; and there is not believed to Hove v. Howe, 99 Mass. 88. There the grantor, be- be a single exception to the principle that a deed

" But it

from a parent to a child is always regarded with a a necessary duty; and when a father discharges that favorable eye, and every presumption is in favor of duty, this court will not presume a fraud. If, there its validity."

fore, fraud is alleged, it must be proved in the ordi“A settlement made by a parent on a child, so far nary way. In this case no fraud has been shown, from being regarded with jealousy, will always be and I must, therefore, dismiss the bill, so far as it presumed to be free from suspicion; because it is the seeks to have the lease set aside." natural course for property to take. One of the This case explains the true reason for the distincmain objects of the acquisition of property by the tion between cases of gift from child to parent. In parent is to give it to his child; and that child in the latter class the relation of guardian and ward turn will give it to his, and in this way the debt of exists, and there is some semblance of reason in apgratitude we owe to our parent is paid to our child-/ plying the stringent rule where that relation exists ren.” Page 581.

by nature as well as where it is created by convenThe same doctrine has received an authoritative tion. sanction in the English case of Beauland v. Bradley, In short, we think, upon principle, as well as upon 2 Smale & Giffard, 339, decided in the year 1854. In authority, that the editors of White and Tudor's that case the testator was 85 years old; deaf, and Leading Cases in Equity (one of the most excellent alleged to be weak and infirin in mind and body, and of law books) are justified in saying: "In order to very much under the influence of the defendant, avoid a grant, on the ground of undue influence, it Ann Bradley, his housekeeper, and it was alleged must be shown that the influence existed, and was that eight days before his death, for an inadequate exercised for an undue and disadvantageous purpose. rent, he executed a lease, through the procurement The former point may be inferred from the relative of Ann Bradley, to his grandson, and his son-in-law or actual position of the parties; but the latter (Ann Bradley's husband) without any advice from a must be determined by an examination into the nasolicitor. There was no evidence of any undue in- ture and results of the transaction which is called in fluence by Ann Bradley or the lessees.

question. Both these points must concur to produce The Vice-Chancellor says: “ The bill alleges that the effect of avoidance." when the lease was executed by the testator, he was As the law stands, therefore, in cases of natural confined to his bed; that Ann Bradley had much relationship, the law does not apply the doctrine of influence over him, and that he was induced by her constructive fraud, and impose on the claimant the to execute this lease just eight days before his de- burden of showing the fairness and good faith of cease, and without professional advice, in favor of the transaction. his grandson and his son-in-law, the husband of Fraud is implied in law only when the confidential Ann Bradley. If the allegations of surprise and relation is of the conventional character above undue influence had been proved, there would be no mentioned, or where the circumstances in proof indifficulty in granting the relief sought by this bill; dicate a probability of bad faith or undue influence. but the plaintiff fails in proof of what is the foun- If this question were new, we should hope to dation of his case the undue influence and sur- have the law laid down in a more reasonable form prise.

concerning conventional relations. It seems exIt is said that the lessor, being the grandfather of tremely severe and inconvenient to assume, in every one of the lessees and father-in-law of the other, case of such relations, that fraud must be assumed there existed such a confidential relation, between from the mere existence of the relation, without him and those he intended to benefit, as to throw any proof whatever of any extrinsic probability of upon them the onus of proving the absence of un- fraudulent practice. In criminal law the contrary due influence. It is a new doctrine, that a parent presumption prevails, even in spite of proof that cannot by a deed, only a few days before his death, may strongly point toward guilt. It is the true benefit a child or grandchild. The case which has office of equity to protect the helpless, confiding and been cited in support of it, Hoghton v. Hoghton, is inexperienced against the wrong practices of those very different. That was a case in which a son, holding relations of trust and confidence toward having just attained twenty-one, gave up property them, but it is the actual wrong practice, and not for the benefit of his father, who was his natural the mere suspicion of wrong practice, against which guardian, and was, therefore, within that rule of the the vigilance of the law should be directed. In court which protects a person under the influence of many of these cases the age and experience of the others from having that influence abused. There is, | parties affords the strongest natural presumption however, no rule of this court which prohibits a against the probability of fraud, but the artificial man by a voluntary deed from bestowing a benefit presumption remains the same. The lamb is freupon his son, or grandson, or son-in-law, even al- quently called on affirmatively to convince the court though only a few days before his death. To pro- that he did not muddy the stream above from which vide for his children or grandchildren is, or may be, the complaining wolf was drinking.

But the doctrine of constructive fraud is probably exist, and that such custom was unreasonable and too ancient and deep-seated to be easily uprooted.

bad. It is quite in keeping with the idea, so long preva

The learned judge entered a verdict generally for

the defendant upon the facts and evidence before lent, that men are not fit to be trusted as witnesses

him. He found that, by the custom of the country, upon oath in their own behalf. We must continue

the incoming tenant, and not the landlord, w: liato take it for granted, we suppose, that an attorney ble to pay for the seeds, acts of husbandry, and tillwill clear his confiding client, a trustee defraud his ages. ignorant cestui que trust, a guardian overreach his The questions for the opinion of the court are: 1. inexperienced ward, an agent impose on his careless

Whether such a custom as that set up by the defend

ant can in fact exist? 2. Whether, if such a custom principal, a physician over persuade his dependent

can in fact exist, it is a good custom? 3. Whether, patient, and a clergyman deceive his dying parish

upon the facts stated, the landlord or the incoming ioner, because we have so long been taught to be- tenant is liable to the plaintiff for the seeds, acts of lieve that such is human nature; but we are really husbandry, and tillages, etc. ? gratified to learn, contrary to the tradition of our

Jelf, for plaintiff. profession, and to the carelessly uttered dicta of

J. D. Sim, for defendant. many judges, that there is no legal presumption that a child will take advantage of the generosity of his

LINDLEY, J. It appears to us that, if the custom parent, however much disagreement there may be

found to exist in this case can be supported in point of as to gifts from child to parent.

law, there is nothing in the lease under which the plain

tiff held inconsistent with the custom, so as to exclude In conclusion, we are led to remark, that as gifts its application to him when his tenancy determined. It between parent and child are generally privately be- is very true that when he went in he agreed to pay the stowed, and are rarely investigated until after the outgoing tenant's valuation “in exoneration of the death of the donor, it seems rather hard measure to

landlord;” but there is no provision in the lease to insist that the survivor shall give affirmative evi

the effect that the landlord should compensate the

plaintiff on his going out; and apart from custom no dence of the entire fairness of the transaction, and

obligation so to do can be implied. The expression yet at the same time effectually prevent him from

“in exoneration of the landlord " shows that the landdoing so by closing his mouth as a witness.

lord was (or might be alleged to be) liable to compensate the plaintiff's immediate predecessor in the occu

pation of the farm; but whether such liability was by CUSTOM BAD IN LAW.

reason of some custom or some contract is not stated,

and is not known to us; and even if it were by reason ENGLISH HIGH COURT OF JUSTICE, COMMON PLEAS of some supposed custom, the existence of such cusDIVISION, FEBRUARY 1, 1878.

tom is inconsistent with the custom found in fact to

exist. The custom here found to exist in point of BRADBURN V. FOLEY.

fact is to the effect that the incoming tenant, if there A custom that the outgoing tenant of a farm shall look ex

be one, is the only person liable to compensate the clusively to the incoming tenant, where there is one, outgoing tenant: the custom as found exempts the and not to the landlord for compensation for the seeds, acts of husbandry, tillages, etc., is so unreasonable, un

landlord from liability altogether. Such a custom certain and prejudicial to the interests of both land- will be found on examination to involve the following lords and tenants as to be bad in law.

consequences: 1. That the outgoing tenant has imSPECIAL case from County Court. The action was posed upon him for his sole and exclusive debtor a

brought by the trustee in bankruptcy of one person in whose selection he has no choice, and with Davies, who was a tenant of defendant, for seeds, sow- whom he has made no contract at all. 2. That the ing, harrowing, and other acts of husbaudry and till- incoming tenant has to make compensation to the outage on the leased farm. Before the crops had grown going tenant irrespectively of the purposes for which for the benefit of wbich these acts had been per-- he (the incoming tenant) may work the land; and formed, the tenancy of Davies expired and another whatever the terms between him and his landlord may tenant came in. At the trial evidence was given on be, and whether the incoming tenant takes the land the part of the plaintiff that the custom of the coun- for a week, a month, a year, or a long term. 3. That try was for the landlord to pay the outgoing tenant the outgoing tenant can make no arrangement with for the seeds, acts of husbandry, tillage, etc., unless his landlord as to his valuation, unless the incoming there was an agreement between the outgoing and in- tenant is a party to it and assents to it. 4. That in coming tenants that the incoming tenant should pay the event of a letting and undertaking it is (on the for the same.

custom as stated) uncertain who is to pay, viz., the For the defendant it was contended that he was not immediate lessee from the landlord or the ultimate liable, and that by the custom of the country when tenant who takes possession. 6. That such a custom there was an incoming tenant who entered on the would lead any prudent tenant to run his farm out as farm at the expiration of the tenancy of the outgoing much as by law he could, and to leave as little as postenant, he and not the landlord became liable to pay sible for the incoming tenant to pay for. A custom the outgoing tenant for the seeds, acts of husbandry, having such consequences as these appears to us so untillages, etc., and that the landlord was only liable reasonable, uncertain and prejudicial to the interests when there was no incoming tenant.

both of the landlords and tenants as to be incapable By way of reply, it was contended that no such of being supported in point of law. The argument custom as that set up by the defendant could in fact that it is to the interest of the landlord to secure a sol


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