Maynard's Case 1 Walk. 472

MAYNARD'S CASE.

Where a property is purchased by a third person at Sheriff’s sale, for less than the claim against it, the attorney for the execution creditor does not become a trustee for his client, by buying the property from the purchaser subsequent to the sale.

Where an attorney purchases property for less than his client’s claim, the client cannot obtain the benefit of the purchase without paying the purchase money.

Appeals from the Common Pleas of Northumberland County. In Equity. Nos. 66 January Term, 1866 ; and 315 January Term , 1867.

This was a proceeding in equity brought by Samuel Brady against John W. Maynard, charging Maynard.with having obtained an interest in certain railroad stock, by virtue of his rela*473tion as attorney for Brady, and to compel Maynard to account therefor as trustee for Brady. The facts of the case appear in the opinion of the Court below, dismissing plaintiff’s bill and was delivered on September 8th, 1865, as follows per

Jordan, P. J.:

"We are asked to make a decree to compel the defendant to transfer to the complainant 1,170 shares of stock of the Bald Eagle Valley R. R. Co., and to compel him to account for and pay over to complainant the whole amount of money received by him as the distributive share of the proceeds of sale of said railroad and premises; and to account and pay over the whole proceeds of the two drafts dated at Philadelphia, February 22, 1862, drawn by Philip M. Price on L. A. Mackey, Esq., of Lock Haven, in favor of defendants, each for the sum of $2,000, or so much thereof as is justly due the complainants; or if said drafts are not fully paid, then to deliver the same over to complainants. Defendant denies that the stock above mentioned, or any part of it, belongs to complainant, and affirms that he has accounted for and paid over to Brady all the money he received for them, and that the drafts are not in his possession and that payment of their amount or any part of it has not been made to him.

All the material allegations in the plaintiff’s bill are denied by the defendant; and we must therefore resort to evidence, for the purpose of arriving at the justice of the ease% The amount in controversy, the sum demanded of defendant, and the charge of fraud made against him demand from us a careful examination of the evidence, and this we believe we have given it. The view we take of it, and the principles of law involved may not accord with the views of the party against whom we decide, but we must adopt them or do violence to our notions of right and wrong. If our decision was conclusive upon the parties, we would feel greater importance in pronouncing it. If we do injustice, the error we commit will be corrected by a Court, whose decisions may not be impeached for reasons, sometimes urged by counsel, for the reversal of decisions made in inferior Courts. Up to the time of the second sale oí the railroad on January 29, 1861, or immediately preceeding that period, there is no evidence that seems to justify the charge of want of fidelity on the part of de*474fendant towards his client, Samuel Brady, and on the argument of this case, that, if not conceded, was but feebly pressed. The advice given appears to have been with a view to secure to Brady as large an amount as possible, and not with the view of appropriating the earnings of Brady to defendants own use and that of his friends. The claim of Brady was a large one. He was unable to obtain payment from the company without resorting, to compulsory measures. He needed counsel and selected the defendant, in whose legal ability he might well confide. Brady constructed the road. The company were indebted to him in the sum of $52,-400. In 1859, a resolution of the company was passed instructing the president of the company to pay Brady that amount in the first mortgage bonds at 50 per cent, discount from the face of the bond making $104,800. This proposition was made to Brady, and it was while he held it under consideration the defendant was consulted as his counsel for the first time. Brady was advised to accede to the proposition, which he did, and the bonds were delivered to him. On the argument of the cause it was alleged, we think without sufficient evidence to support it, that the defendant and his son-in-law, W. W. Willard, Esq., were law partners. There does not appear to have been any connection of that kind at that time. It is admitted that defendant advised plaintiff to go to Philadelphia and institute proceedings in equity to foreclose the mortgage, and to employ St. George T. Campbell, Esq., to draw a bill for that purpose. A bill for the purpose stated was prepared and filed on January 6, 1860, a decree was made that the said corporation defendants were wholly and utterly insolvent, unable to pay either principal or interest on said mortgage, or the other indebtedness of the company, and after the recital of various other things, Ezra Bowen and George S. Fox, the trustees named in the mortgage, were directed to sell said road and all its franchises at the Merchants’ Exchange, in Philadelphia, on November 29, 1860, at public sale and prescribing the terms upon which the sale should be made.

On May 16, 1860, a written agreement was entered into between the holders of the first mortgage bonds, to wit, Samuel Brady, John Jones, William Fearon, A. H. Best, Daniel Irvine, A. M. Elder and the Central Bank of Pennsylvania, to employ counsel to file a bill in equity, to foreclose the mortgage and *475obtain a decree for the sale of the road, and corporate franchises. A blank was left in the agreement for the name of some one who was to act as trustee in purchasing the road. It was stipulated that the parties to the agreement were to have a pro rata in the road and franchises, in proportion to the bonds held by them, and in case the trustee did not become the purchaser, the purchase money was to be distributed pro rata.

This was a preliminary agreement. The bonds at that time were in the hands of the trustees named in the mortgage. On Nov. 26, 1860, another agreement was entered into between Samuel Brady and twelve others holding stock, reciting' that the road is to be sold on November 27, 1860, under the decree recited above. It is stipulated that Samuel Brady should bid at such sale, such sum as might be' advised and directed by his counsel and J. McCoy and L. A. Mackey, and if he became the purchaser and the sale was confirmed, he was to hold the title in trust for the parties named to the amount set opposite their respective names. It was further stipulated that a new company should be organized by the parties in interest, and the capital stock should consist of $350,000, represented by 7,000 shares of $50 each, and to be divided by the trustee in certain proportions. The parties were to pay a pro rata share of the purchase money as follows: two per cent, on the par value of their stock. A failure to pay was made a forfeiture to all claim to the stock. Any surplus stock that might be occasioned by any default as above specified, or surplus after distribution was to be disposed of by J. W. Maynard, L. A. Mackey and Samuel Brady at their discretion, to promote the interest of the said road, Brady was limited by the parties in his bid to ••$30,000, but bid- to the amount of $51,000 ; and failing to pay and the other parties repudiating the sale, it was set aside, and a resale ordered. The parties were dissatisfied with Brady, and refused to pay, as he had exceeded the authority given to him.

On December 7,1860, on petition of the trustees a resale was ordered to take place on Jany. 29,1861, upon the same terms as the former sale. Previous to the last sale a partial arrangement was entered into between P. M. Price, D. K. Jackman, Judge Maynard and L. A. Mackey, that Price should become the pur*476chaser of the road at a sum not exceeding 125,000. He was to have one share, L. A. Mackey two, Thos. A. Scott one, Judge Mayrard one, Blanchard and others in Centre Co. one, and as to one other share there was no definite arrangement. If the road was bid off for less than $25,000, the difference between that sum and the sum actually bid, was to be divided ; § to Brady and -J- to Mackey. The arrangement thus made was communicated by Judge Maynard to Samuel Brady on the morning of the day of sale, and at noon the property was sold to Price for $21,000. On Peby. 26,1861, the sale was confirmed and the trustee ordered to execute a deed to Price, the purchaser, which was done. The relation of attorney and client existed at the time the parol agreement was made, that Price should become the purchaser, and at the time the sale was made and subsequently after the sale, Judge Maynard, at,the instance of Brady, exerted himself, though, as it appears, unsuccessfully, to obtain for Brady a larger share than an eighth. Brady applied to Price, but was informed the party was made up, and that that share lay between him and Judge Maynard. The Judge and Brady after talking together some time, met Price and the Judge said to him: “Mr. Brady will tell you what to do about the share. If he concludes to take it, or if we conclude to take it, (the witness, Price, not being certain which) Brady will let you know, and you may'draw- on me for the money.” The witness afterwards stated: “I think he used the word I rather than we.” Immediately after the conversation Judge Maynard left for home, in company with Mr. Mackey, and next morning Price called on Brady for his answer. Brady replied that he concluded to take the share, as he could get no more, and that Price should draw on Maynard for the money. This evidence, the reply of Brady to Price, was objected to by defendant’s counsel. The Court are of the opinion, that it was competent evidence. Brady, as stated by Judge Maynard to Price, was to tell him about the share. There does not appear to have been anything said at the time about whose name the stock should be taken in, and the witness, Price, says, he of course put it down in Judge Maynard’s name.

At this point in the evidence it will be proper to inquire in what character Judge Maynard was acting at the time it was *477agreed that- Price should purchaseat the time the sale was made; at the time he made an effort to obtain a larger share than one-eighth for Brady; and at the time he met Price and told him Brady would tell him about the share. The testimony shows, as we think, very clearly that at each and all of these different times. Judge Maynard was acting as the attorney for Brady. Brady had not released him, and Judge Maynard had not disclosed to his client that he was acting in any other capacity than as his legal adviser. Brady was certainly anxious to secure his claim, and Judge Maynard appeared as anxious that he should accomplish his wishes. The agreement that. Price should purchase in his own name, for himself and the parties already named, and each to have the interest stated does not, we think, put the defendant in any different position, as between him and his client, than he would have been had all the parties become the purchasers and the deed from the trustees executed to them.

In the absence of any evidence that Judge Maynard at the time the agreement referred to above wa3 made, and, the- sale effected, was not acting as the attorney of Brady, what are the legal obligations resulting from the relation of client and attorney ? It has already been stated that Brady selected Judge Maynard as his legal adviser, for the purpose of prosecuting his claim against the railroad company, and compelling payment of his claim if possible. He confided in him as a gentleman of skill, integrity, and ability, on whose honesty he might rely, and in whose legal judgment he might trust. It is quite unnecessary for this Court to speak of the legal skill and ability of Judge Maynard. No one was better qualified than he to counsel and advise Brady. Brady might have consented before the sale of the road or after it was sold, that Judge Maynard should hold the one-eighth in his own right, .and released J udge Maynard from all obligations as as his counsel and legal advisor ; and if we are satisfied from the evidence, he did so, the complainants bill as to this share must be dismissed. But if Brady did not do so, the question is raised to whom does this share belong? Judge Maynard, we think, could not purchase, nor Price for him, and claim the benefit of it for himself to the prejudice of his client. His purchase under such circumstances would inure to the benefit of his client; he *478will be considered as holding in trust for him. This doctrine is laid down in many cases in our own books, in the books of reports of sister states, and in England. The rule is well established that an attorney may not purchase land sold on an execution in favor of his clients for a less sum than his clients claim. The rule is based upon sound principles of public policy. In Black vs. Leisenring, 5 Watts, 845 ; in Galbraith vs. Elder, 8 Watts, 100,it was held that an attorney conducting the sale of real estate upon an execution cannot purchase the land for his own benefit to the prejudice of his client for a less sum than the amount of the claim. If there are two plaintiffs he may not purchase for the benefit of one, without the consent ot the other. So if an attorney be consulted professionally respecting the title to lands, he cannot afterwards, become a purchaser of these lands from the State or a third person, and set up such title against his client, but the same shall enure to the benefit of such client. Judge Kennedy, who delivers the opinion of the Court in those cases, disposes of the question with his usual ability, and supports his opinion by the reference to numerous authorities.

The character of the trust which the client reposes, in his counsel, the incompetency of counsel to testify as witnesses, and disclose facts communicated to them by their clients, and the duty of the attorney to watch over and protect his client’s interests, are clearly stated. He remarks: “Principles of expediency, as well as those of justice, require that the counsel, or the attorney, should derive no advantage whatever from such acts, as when done by him, may operate to the prejudice of his client, or occasion a loss to him, and all the advantages which otherwise would have arisen therefrom, to the counsel shall inure to the benefit of the client. Whenever there is a trust to be executed, or a duty to be performed, the person charged with such trust or duty, is not permitted to do any act inconsistent with such trust or duty: a constable or sheriff may not purchase goods at his own sale, and if he delegate his power to another, the deputy stands in place of the principal: Crook vs. Williams, 8 Harris 342; Beason vs. Beason, 9, Barr 284; Beck vs. Ulrick, 4 Harris,499; Greenfield’s Estate ; 2 Harris, 506. Upon principle and authority Judge Maynard, when this property was sold and purchased by *479Price, for himself and others named, the Judge being one of them, held the one-eighth in trust for his client. The law makes an attorney, who purchases property sold on an execution or other process in which the attorney is concerned, a trustee for his client, and to create this trust it is not necessary that actual fraud should be proved.

Having stated the duties of a counsel, or attorney to his client, and the position in which he stands if he becomes the purchaser of the property sold on his client’s process, for a sum less than the client claims, we must examine the testimony and from it determine whether Brady before, at the time ot sale, or afterward, relinquished his claim to one-eighth, or did any act that would justify Judge Maynard in holding it against him. The proof of this is, we think, thrown upon the Judge, and when the amount of Brady’s claim against the company is considered, his anxiety to Secure it, and that upon its recovery depended his ability to pay debts contracted by him, and incurred in the prosecution of the work, the evidence of the abandonment of it should be pretty clear, and not left to conjecture. When Mr. Price called on Judge Maynard, who was about leaving the city, after the sale was made, to arrange bis one-seventh of the $5,000 that was to be paid down (one of the eight shares not being provided for) the Judge intimated a doubt about not taking it, and very properly observed that he would not become a party to the purchase, or .have anything to do with it without the consent of Brady; that he would not put it into the power of any client to charge him with taking advantage of his position as counsel. It was urged by Price that he was one of the parties counted on to take the property, and if he refused some other arrangement would be made about it. The Judge then referred him to Brady. Price met Brady and informed him of the subject of the conversation had with Judge Maynard. Brady urged his claim as Judge Maynard had for a larger share than one-eighth, and threatened to have the sale set aside if he did not get it. He was told that he could not get more, and that the share lay between him and Judge Maynard.

The Judge and Brady then had a short conversation, at which Price was not present, but they immediately met Price and Judge *480Maynard remarked-: “Mr. Brady will tell you what to do with the share. If he concludes to take it, or we conclude to take it? (witness was not certain which) he, Brady will let you know, and you may draw on me for the money.” Price drew a draft on Judge Maynard immediately after the interview with Brady in which he told him, Price, that he had made up his mind that the stock should be taken and to draw on Judge Maynard for the money. Price states in his second examination in chief, that he believes the language used by Maynard was as he stated in the former part of his examination and thinks he used the word “I rather than “we.” The recollection of Mr. Mackey and Mr. Price, as to .1 udge Maynard’s refusal to take the share without Brady’s consent are substantially the same. Mackey and Price both state distinctly .that Judge Maynard agreed to be one of the parties to the sale; consented to the arrangement of the details of the sale, and named the parties who were to have the different shares. The interview between Price and Maynard was on the morning of the day of sale in Philadelphia. These witnesses state that they knew Judge Maynard was acting as the attorney and counsel for Brady. The draft drawn by Price on Maynard is dated January 31, 1861, at sight for $730.70 in favor of Drexel & Co. Endorsed pay S. Jones, cashier or order for collection, Drexel. Received the within of W. W. Willard in full, J. Damant, teller. This payment was made by Willard’s draft in favor of Price in the West Branch Bank. The balance of the purchase money $1,600 was to be paid within thirty days after the sale of the road. Either the day the money became due or the day before Mr. Willard went to the city on behalf of the share held by Judge Maynard, and told Price it was divided in three equal parts; of which he and Peter Herdic were each to have one, Judge Maynard retaining the other. Willard paid Price the money for two shares, his own and Judge Maynard’s ; but as Mr. Herdic did not arrive Willard drew on him for the amount and the draft was discounted by Jay Cooke & Co. The money then paid and the proceeds of the draft on Judge Maynard make up the one-eighth of the $21,000 for which the property sold.

The organization of the company was completed on April 1, 1861, by a meeting of Price and his associates, as he called them *481at Lock Haven, Brady was not notified and was not there ; Judge Maynard was. Price made a conveyance of the road, and the Board of Managers in payment therefor issued to him 8,000 shares of stock at $50 per share. Price issued to the respective parties certificates for the amount of cash to which they were entitled. He transferred 1,000 shares to Judge Maynard, who directed his shares to be issued in three certificates, two of them for 333 shares and one for 334 shares; all in the name of Judge Maynard. The reason the Judge gave at the time was that one share might be transferred to Mr. Willard and one to Peter Herdic. The transfer of Judge Maynard to Peter Herdic for 333 shares was made on the books of the company January 12, 1863, and on March 1,1862, he transferred 333 shares to Mr.-Willard. Surplus stock was issued in 1862 to the original stockholders, and .under the arrangement Judge Maynard was entitled to receive 170 shares on condition that he paid $3 per share.

On May 13, 1862, Judge Maynard and W. W. Willard, Esq., called on Mr. Mackey in reference to the issue of this surplus stock. Judge Maynard asked to pay the $3 per share on the 170 shares by a credit on Price’s drafts for $4,000 in his favor; to which Mr. Mackey objected. He wanted cash. Mr. Willard said he was ready to pay his third and handed the money to Mr. Mackey. He paid at the same time Mr. Herdic’s third. These certificates were made out in Judge Maynard’s name ; two for 57 shares each and one for 56. Judge Maynard immediately transferred one certificate for 57 shares to Mr. Willard and one for a like number of shares to Mr. Herdic. These two certificates were cancelled and new certificates issued to them. Judge Maynard did not pay for the 56 shares, and the certificate remains unissued. • Mr. Willard in his testimony states that no part of the money paid by him belonged to Judge Maynard; and that Brady had not the slightest interest in it.

We have thus briefly traced the ease from the time Judge Maynard was retained as counsel for Brady, to the agreements made before the sale was made, to the time of the sale ; its con - firmation, the delivering of deeds, payment of purchase money and distributions and transfer of stock, in whose name entered , &c. We have also shown from the evidence that the relation of

*482client and attorney existed at these different periods, and the law resulting from this relationship, and it remains in this branch of the case to give our opinion, whether before the sale Brady authorized his attorney to purchase or take an interest in the property sold in his own right, or after the property was sold, thus destroying the trust which the law created in Judge Maynard that he held for his client, and not for himself. We have already referred to a portion of the testimony relating to this, the declarations of Judge Maynard that he would not take the shares unless with his client’s consent, and his referring Price to Brady to know if the latter would take it, and his declaration that he would.

In the month of December previous to the sale Mr. Brady in company with Mr. Mackey, called on Judge Maynard in his room at Lock Haven. Mr. Mackey, in the interview between them there, urged Mr. Brady, as he could raise but little money, to" have the sale made for the benefit of the bondholders, when Mr. Brady remarked he would leave his interest entirely in the hands of Mr. Maynard, who was then acting as his counsel. It was agreed between Mr. Mackey and Judge Maynard that it would be better Mr. Brady should not appear as a bondholder either at the sale or before the áuditor to make distribution of the proceeds of sale, as he might be held liable for the difference between the two sales. Mr. Price consulted Judge .Maynard as to how the two $2,000 drafts should be drawn ; whether in the Judge’s favor or not and suggested two reasons: First, Brady’s embarrassed circumstances which might subject them to attachment. Second, as Judge Maynard was likely to become a director, he could aid in having the company provide for them, and then release Price from personal liability for them and it was so done.. Brady paid no money, and Price states he looked to Judge Maynard for the money, and that both before and after the sale Mr. Brady claimed a larger interest in the purchase than one-eighth, and asked to be allowed to not to have to raise money on it until it could be realiz ed from his bonds. Judge Maynard on one oct casion, if not more, pressed this claim on Mr. Mackey and Mr. Price, which was as already stated refused and the cash demanded for that interest.

When the company was talked over and agreed upon, Brady’s *483name was mentioned as one ot tbe associates. One of the parties said he would have nothing to do with it, if Brady’s name was in any way connected with it, for the reason that his name had been associated with the proceedings of the Tyrone and Lock Haven Railroad Company, and would bring discredit on the new organization.

In the conversation already referred to between Brady and Price, after Judge Maynard had directed Price to call on Brady, the latter spoke of his desire to have as large an interest as possible in the purchase, and of this share being in whole or in part to his use, and that Judge Maynard had in his hands bonds belonging to him, upon which the purchase money might be raised. Wm. P. Brady, the father of the complainant, met Judge Maynard at Omit’s Hotel, in Harrisburg, and inquired of him what he thought his son would realize out of the road? That he felt anxious to know, and the Judge replied that that would depend upon what the stock would sell for, that he thought the stock would come up.

J. M. McMinn, who was the Chief Engineer on this road, and who was a creditor of the company to the amount of $4,900 states a conversation he had with Judge Maynard on the morning of the sale, in which the Judge said it was the interest of the creditors to let the road be sold as low as possible, and it was agreed that the witness should see Wm. Underwood and induce him not to get up competition in tbe bidding. This was in the presence of Brady' who was advising with Judge Maynard, as his counsel, and the Judge remarked subsequently that he had exerted himself to prevent competition at the sale. If Brady was not to have an interest in the purchase, this arrangement was no! very well calculated to secure his claim or a small portion of it. It was certainly to his prejudice that competition in bidding should be prevented, unless he was to be interested in the purchase. In a coversation Robert Chatham had in Harrisburg, after the second sale, and while some legislation was had respecting this road, with Judge Maynard, he asked the Judge if he had got Brady’s matter all fixed up — settled. Asked him how he got along with the Brady matter. He, when asked whether he got the money, said no; it was in stock; and if Brady would realize to pay his debts ; he replied that that would depend on the price of the stock. In these declarations of *484the Judge there is certainly no claim made by him to the stock in his own right; and although he did not state it belonged to-Brady; is not the conclusion forced upon us that it did,, else how could it be applied to the liquidation of his debts. In a conversation which this witness had with Judge Maynard, in Lock Haven, he communicated to Judge Maynard a conversation witness had with Brady, in which he stated that the company had put in his hands bonds amounting to over $100,000 at fifty cents on the dollar, and that if his friends would keep quiet a little while, every man of them would get their money. He was confident he would pay all his debts and have $10,000 left. This conversation was communicated to Judge Maynard, and he said it was correct, and that he had no doubt Brady would pay his debts, said he was his attorney, and'that he would get* or had got that amount oí bonds, and was going to sell the road on those bonds. Witness understood from both of them that the bonds were to be placed in the hands of Judge Maynard, to sell the road as attorney for Mr. Brady. The declarations of Mr. Brady made in the absence of Judge Maynard, unless communicated to the latter or authorized by him, have been rejected.

John H. Thompson, another witness for complainant, had a claim against Brady, being special bail for him, and understanding he had stock in the railroad represented by Judge Maynard called on him and told him of Brady’s indebtedness to him, his promises to pay the debt in stock as soon as he could get it out of his (Maynard’s) hands, and he replied that if witness got an order from Brady he would accept it, or arrange it.

We come now to an examination of the testimony, on the part of respondent, bearing on that branch of the case having reference to the ownership of the stock claimed by complainant as belonging to him. The testimony of W. W. Willard and Peter Herdic was objected to on the ground of incompetency from interest, they holding part of the stock claimed. The Court think the objection cannot be sustained as to their competency, but may very properly considered as affecting their credibility. That part of Mr. Herdic’s testimony and Mr. H. E. Taylor’s relating to the conversation with W. H. Armstrong, Esq., is rejected as entirely irrelevant and ought not, we think, have been introduced. It does *485not appear to have any bearing on the points at issue between the parties. Mr. Armstrong’s testimony is rejected as irrelevant. The conversation between Mr. Willard and Judge Maynard, in the absence of Mr. Brady and not communicated to him, the Court are oí the opinion should not be considered. The witness says that he and Peter Herdic took the share that had been appropriated to Judge Maynard, being the one-eighth interest in all. There appears to be some difficulty in reconciling this statement with that made by Mr. Price, who states, as the Court have already remarked, that Mr. Willard came to the city on behalf of the share held by Judge Maynard, and said it was divided in three equal parts, he to have one, Mr. Herdic one, and Judge Maynard one. After an auditor had been appointed as stated by Mr. Willard, and about the time the first meeting was to be held, Judge Maynard and Mr. Brady called on him, and requested him to represent some bonds of the railroad company before the Master. Judge Maynard, in the presence of Brady, said Brady had bid off the railroad at a former sale, and was unable to pay his bid, therefore his name could not be used; Judge Maynard further remarked it was not necessary for'witness to know to whom the bonds belonged.

The bonds were placed in the hands of John C. Bullit, Esq., by consent and while waiting at his office, Brady said that he supposed all that he or his creditors would get would be the amount these bonds would get, and the $4,000 Judge Maynard had managed to secure over and above the bid. He said Mr. Maynard had offered him the share he had taken in the new company, but he could not raise the money and he could not take it. Ou being informed by the witness that the Judge did not take it, but that he and Herdic did, Brady said that made no difference who took it, Judge Maynard or his friends, as he had no claim on it. The witness relates a conversation between Brady and his counsel, after this, in the office of witness, in Williamsport, or rather in an adjoining one, then occupied by Judge Maynard, about February 12, 1862. An attachment execution had been issued by R. C. Cummings against Brady with notice to Judge Maynard as garnishee. An order drawn February 12, 1862, was drawn by Mr. Brady on Judge Maynard and accepted, in which Brady states that he wishes to make provision for the payment of some of his *486debts, and would be obliged if the Judge would pay any balance in his hands, or that might come into his hands for him to his order. The witness states that Brady and Maynard said they had settled their matters, and the only difficulty in the way of closing it up altogether was this attachment. On the next day, February 13, 1862, Judge Maynard paid Brady $400. of the proceeds of the sale of the road, being moneys appropriated to certain bonds of that company placed in the hands of Mr. Willard for collection, &c.

The testimony of R. C. Cummings has reference to Brady’s lifting the money that was in the hands of Judge Maynard, and received by him from the auditor, and not to the ownership of the shares of stock in controversy. And we think the same may be said of the testimony of Mr, DePui in part. He, however, relates declarations made by Brady soon after the bill was passed, incorporating the Bald Eagle Railroad Company. This act was passed on March 25, 1861. The witness states that Brady said: Price and Mackey had sold him ooi pretty damned well, and he hoped every person connected with the company would lose every cent they had in it. Brady, turning to Maynard, said: “Of course, Judge, I don’t want you to lose anything.” To which Judge Maynard replied: He had not a cent of interest in the road. And Brady said they had cleared him out, and he had no interest in the road.

It is perfectly clear, we think, from all the evidence, that up to the time of the second sale of the road and afterwards that Judge Maynard was acting as the attorney of Brady. That it was agreed that Price should bid in the property at a sum not exceeding $25,000. That he purchased the road for himself and other parties, (Judge Maynard being one,) under verbal arrangements or understandings with Price, previously made with him — Price. That on the day of sale and after sale took place, Judge Maynard refused to take his share; stating that he would not become a party to the purchase, or have anything to do with it unless with the assent of Brady. Did Judge Maynard afterwards agree to .take the share ? And if he did, did he take it in his own right or for Brady? Who paid the proper proportion of the purchase money and how ? Maynard or Brady, or both ?

After Brady told Price he concluded to take the share, one-*487eighth, as he could get no more, Price put the share down in the name of Judge Maynard, and drew on him for the one-seventh of the cash payment of $5,000, and the draft was paid not by Judge Maynard, but by Mr. Willard on February 4th, 1861. Brady paid no money. The balance of the purchase money, $16,000, was to be paid within thirty days from the time of sale and was paid by Willard and Herdic under the circumstances as stated by Price. Either the day, or the day before the money became due, Willard went to Philadelphia on behalf of the share held by Judge Maynard, and stated it was divided in three equal parts, of which he and Herdic were each to have one ; Judge Maynard retaining the other. Willard paid the money for his share, and also Judge Maynard’s and drew on Herdic for the amount of his one-third. The draft was discounted by Jay Cooke & Co., and afterwards paid. The Board subsequently agreed to take a conveyance of the road from Price. He delivered the deed to them, and they issued to him in payment therefor, 8,000 shares at $50 each ; and he transferred 1,000 shares to Judge Maynard. At the same time Judge Maynard directed his share to be issued in three certificates; two of them for 383 shares each, and one for 334 shares, all issued in the name of Judge Maynard. These certificates were issued about April 1st, 1861, and on March 1st, 1862, a transfer was made on the books of the company from Judge Maynard to Mr. Willard of 333 shares, and to Peter Herdic, od January 12th, 1863, for 333 shares. The other 334 shares stand on the books in the name of Judge Maynard. During the year 1862 surplus stock was issued to the original stockholders, and of this surplus stock, Judge Maynard was entitled to 170 shares on the payment of $3 a share. On May 13th, 1862, Mr. Willard and Judge Maynard called on Mr. Mackey in reference to this surplus stock, when Judge Maynard asked to pay the $3 per share on the 170 shares by a credit on Price’s draft in his favor for $5,000, which was refused. Mr. Willard then paid his one-third of the 170 shares, and Mr. Herdic’s one-third. Three certificates were made out in Judge Maynard’s name, two for 57 shares each and one for 56. Judge Maynard immediately transferred the two certificates of 57 each to Willard and Herdic. These certificates were cancelled and new certificates issued to Willard and Herdic. The other certificate for 56 shares Judge Maynard did not pay for and it remains unissued. *488Both Willard and Price testify that they took the one-eighth share of the stock purchased by Price and paid for it, and that no part of the money belonged to Judge Maynard.

We cannot, under the facts which have been disclosed, disregard the testimony of Messrs. Herdic and Willard, and reject it as entirely unworthy of belief. Taking their testimony as true, each of them became the purchaser of one-half of one-eighth interest in the road. The receipt from. Mr. Price to Mr. Willard is dated February 23rd, 1861, for $955.36, being the balance for purchase money of one-half of one-eighth interest in the road appropriated to John W. Maynard. Mr. Willard states he paid to Mr. Price $255.36 Herdic’s one-half interest and took a receipt, similar to the oDe given to himself. Herdic testifies to the same thing, and so does Price.

The sale, as already stated, was made on 26th January, 1861. On the 30th, Price writes to Maynard: “I saw Brady this morning, He says he or you will take the share. To give you another da.yq 1 will not draw till to-morrow, when I will give you a sight draft for one-seventh of the $5,000 with the exchange. I hope Mr. Brady will not take himself.” The draft on Maynard was drawn on the 31st and paid by Mr. Willard on the 4th of February. The letter of Price to Maynard of January 26, 1861 does not state that Brady will take the stock, although Price in his •deposition swears that Brady, after Judge Maynard left the city, said he had concluded to take the share, as he could get no more and that Price should draw on Maynard for the money. If we concede that Brady had concluded to take, was this fact communicated to Maynard, and when and where? Who took this share —one-eighth—Brady or Maynard ? Neither of them took it and neither of them paid for it. It is true that 334shares of the 1,000 stand in the books in the name of Judge Maynard, but unless Willard and Herdic are guilty of false swearing, he had no interest in it. 1'ossibly if an action at law had been commenced by the personal representatives of Brady against Maynard, a jury might find facts sufficient to warrant them in ’finding the value of the stock against him. And to the Court- this appears the proper mode of settling the questions raised, unless the character of the transaction would estop the plaintiff.

*489We are called upon to compel the transfer of 1,000 shares of stock — not paid for Brady or Maynard, but by Willard and Herdic —333 shares of which have been transferred to Willard and the certificates issued to him and a like number to Herdic of the original stock and also the transfer of 170 shares of stock, one-third of which as already stated was transferred to Willard, one-third to Herdic, which tney paid for, the other third standing on the books of the company in the name of Judge Maynard, not paid for and not claimed by him. We do not think the evidence justifies us in making this decree and it must therefore be denied. On coming to this conclusion on this important case, which has excited a good deal of interest, we have the approbation of our conscience, that it is forced upon us by a careful, and we think unprejudiced examination of all the facts disclosed. Brady’s personal representatives are. not estopped by this decision.

We are also asked to decree that Judge Maynard account for and pay over the whole proceeds of the two drafts, dated at Philadelphia, on the 23rd of February, 1861, each for $2,000. These drafts were drawn in favor of Judge Maynard on L. A. Mackey and were endorsed thus : ‘'Philadelphia, February 23, 1861. The within draft is placed in my hands by Philip M. Price, iu trust; one-third thereof for L. A. Mackey and two-thirds thereof for Samuel Brady, and the same is hereby assigned to them according to their respective interests. J. W. Maynard.” On November 4, 1862, these drafts were handed to Mr. Mackey at the request of Judge Maynard and remain unpaid in the hands of Mr. Mackey. We do not see how Mr. Maynard can be called upon to pay over the proceeds of these drafts. They are not in his possession. They have been assigned to the persons for whose benefit they were originally drawn, and if they were not paid, Mr. Mackey to whom they were delivered, and who had an interest in them and on whom they were drawn, knew in what way to proceed to realize the amount due them. After Maynard assigned them to Mackey, he ceased to have any control over them.

We come now to the part of the bill which prays that the defendant may be compelled to account for and pay over the whole amount of money received by him as the distributive share of the railroad and franchises. The statement exhibited by the plain*490tiffs’ counsel in the argument shows a balance in favor ot Maynard, if he is not charged with the stock drafts.

There is another aspect in this case, disclosed by the evidence, that we think presents a formidable objection to a decree in favor of the complainant, and that is the arrangement by which, whatever was coming to Brady should be placed in such a condition as to put it beyond the reach of his creditors. The bill sets out that the plaintiff had an interview with defendant in Lock Haven in December, 1860, and defendant advised him he might be held liable for the difference between the first and second sale and that it would be for Brady’s interest not to appear to be interested in the purchase. A second sale of the road took place. Competition as far as could be done by the parties — the road was sold and Brady’s interest was concealed. The bill further states that Brady was induced to authorize Price to put down the eighth share in the purchase in the name of Maynard, instead of his own, by reason of. his probable liability to the creditors of the railroad company for the difference between the two sales.

The bill also states that the complainant and defendant met in Philadelphia in February, 1861 after the day of the sale. Maynard, still acting as complainant’s attorney and legal advisor, advised Brady to deliver to him the borlds which Brady still held against the Tyrone and Lock Haven R. R. Company, that his interest in them might be better protected by appearing in the name ot a third person from the claims of other bondholders, which accordingly was so done. These are among the allegations made by Brady in the bill, and they show an arrangement or rather several arrangements, all of them in fraud of Brady’s creditors. In Evans vs. Dravo, 12 Harris, 62 it was held that where an instrument under seal was made for fraudulent purposes, the obligees in it would not be permitted to shield themselves from liability by alleging their own fraud. An actor in a fraud is not permitted to prove it; Hendrickson vs. Evans, 1 Casey, 441.

Decree. And now, to wit, September 8, 1865, this cause came on to be heard and was argued by counsel, and therefore, upon consideration thereof, it is ordered adjudged, and decreed as follows, viz., the bill is dismissed with costs.

*491Brady then appealed, assigning for error that the Court erred in admitting the testimony of W. W. Willard, because he acted as counsel for Brady’s bonds and because he was interested. Also to the admission of Herdic’s testimony on the ground of interest. Also to the admission of George DePui’s testimony of the conversation between Brady and Mayland when conferring together as attorney and client, DePui being Maynard’s clerk. Also that the Court erred in not giving judgment for plaintiff.

William M. Armstrong, James Armstrong and George W. Young, man, JEsgs., for appellant,

argued: that communications between attorney and client cannot be disclosed. Story Eq. PL. § 599, 600. Brightly Eq. Sect. 482; Moore vs. Bray, 10 Barr, 519; Rankin vs. Porter, 7 Watts, 387; Sheriff vs. Neal, 6 Watts, 534. Both Herdic and Willard were interested; 1 Greenleaf Evidence Sect. 392. Buchanan vs. Buchanan, 10 Wright, 186. De Pui was not a competent witness; 1 Greenleaf Evidence, Sect. 139, 239, 240. Maynard cannot advise Brady as his attorney to put the property in his, Maynard’s hands and then appropriate it himself and say that Brady is estopped; Sherk vs. Endress, 3 W. & S., 255; Sickman vs. Lapsley; 13 S. & R., 225. Equity should give relief against this fraud, 1 Story’s Eq. Jurisp. Sections 184, 186, 187, 190, 214, 219, 222, 258, 307, 310, 311, 312. The attorney cannot purchase property, in which his client has an interest. Howell vs. Ranson, 11 Paige, 599, Willard’s Eq. 173, 174, 604; Brightly’s Eq., Section 98; Michord vs. Girod, 4 Howard, 503; Bellow vs. Russel, 1 Ball and Beatty, 96; Hall vs. Hallet, 1 Cos, 135; Moore vs. Moore, 2 Mallory, 455; 1 Story’s Eq. Jurisp., p. 359, 360, 361; Beeson vs. Beeson, 9 Barr, 279; Webb vs. Dietrich, 7 W. & S., 401; Greenfield’s Estate, 2 Harris, 505; Fisk vs. Sarber, 6 W. & S., 18; Henry vs. Raiman, 1 Casey, 354. If the trustee fraudulently parted with the trust property the cestui que trust-may proceed against the trustee or both. Story Eq. Pleading, Sect. 221. As to the power to adjust, tbe decree to meet the circumstances of the case they cited: 1 Story Eq. 486, They also cited Brig Struggle vs. U. S., 9 Curtis, 71: Robinson vs. Smith, 3 Paige, 232; Stockdale vs. Ullery, 1 Wright, 486; Crosby vs. Berger, 11 Paige, 377; Chirac vs. Reinicker, 11 Wheaten, 280; Davoue vs. Fanning, 2 Johns Ch., 252; Wormly vs. Wormly, 8 Wheat, 421; Downey vs. Gerrard, 3 Gr., 64.

*492C. A. Mayer, G. M. Wharton & W. H. Lowrie, Esqs., contra, for appellee,

argued that from the facts as stated in the bill plaintiff cannot recover, as he sets up that he entered into a fraudulent arrangement to defeat his own creditors, and also the creditors of the railroad company; Evans vs. Dravo, 12 Harris, 62; Hendrickson vs. Evans, 1 Casey, 441; Drum vs. Painter, 3 Casey, 148; Abbey vs. Dewey, 1 Casey, 413; Huey’s Appeal, 5 Casey, 219. There is no resulting trust as Brady paid no money; Barnet vs. Dougherty, 8 Casey, 371. Maynard’s relations as counsel ceased when the railroad was sold. If Maynard had taken the stock under an arrangement as claimed, he could not' have compelled Brady to take it and pay him. As the contract must be binding on both parties, it consequently would not be binding on Maynard. At most Brady could only have an election to take the stock or to take the money received from his claim, and he took the money. 2 Story Eq. Jurisprudence, 1097, 1075, 1076, 1080; Wilson vs. Townshend, 2 Vesey Jr., 696; Eshelman vs. Lewis, 13 Wright, 410; Phillips vs. Crammond, 2 W. C. C. R., 445; Downey vs. Garard, 12 Harris, 52; Fisk vs. Sarber, 6 W. & S., 18.