It was

a

Messrs. Ferry, Doran, & Dean also of the payment of the sale price, for appellants.

from which the costs were deducted Messrs. Lamb & Hogueland for ap

The assignment of the certificate to pellees.

Harder was prepared by S. C. Burch, J., delivered the opinion of Holmes, the attorney for the plainthe court:

tiff, who thereafter had professional The action

was commenced charge of Harder's interests as ocoriginally by Hess to foreclose a casion required. Harder's son, F. real estate mortgage given by Con- H. Harder, was present when the way. Judgment was rendered for certificate of sale was assigned. the plaintiff, and the property was The building which burned was sold. After the period of redemp- insured, and on January 9, 1911, tion expired, Harder, as the holder Hess filed a motion asking that con

a of the certificate of purchase, pre- way be required to bring into court sented it to the sheriff and demand- the policies of insurance and any ed a deed. On the refusal of the moneys received thereon. sheriff to comply with the demand doubtful whether or not the insurHarder filed a motion to require him ance was legally collectable, and W. to do so. The motion was resisted E. Hogueland, attorney for Conway, by Conway, who claimed that he had agreed with Holmes, as attorney for redeemed. Judgment was rendered Hess, to effect a settlement with the in his favor, and Harder appeals. insurance company and to apply

There are some serious disputes the proceeds to the redemption of in the briefs concerning the true the property. Thereupon the motion facts in the case. It would serve which had been filed was abandoned. no beneficial purpose to print the This arrangement was made three evidence and to discuss it at length, days before the sale was to take as would be necessary if it were dis- place. On February 24, 1911,

, cussed at all. There are some un- Hogueland paid to the clerk of the fortunate conflicts of testimony to district court insurance money which be resolved, and some inferences are he had collected, in the sum of $500, to be derived from pregnant facts and applied it to the redemption of and circumstances, and from fail the property, taking the clerk's reure to frankly clear up some mat- ceipt accordingly.

ceipt accordingly. On the next day ters left in doubt. Consequently, the Holmes drew this money from the facts upon which the questions of clerk. On March 31, 1911, Hogue. law arise will be stated as the court land received a draft for insurance evidently found them to be by its money payable to the order of Congeneral finding in favor of Conway, way, Hess, and Holmes. After Conin which finding this court is con- way had indorsed the draft Hoguestrained to concur.

land turned it over to Holmes, who The judgment of foreclosure was received the money upon it. On rendered on November 16, 1910, and July 15, 1912, Conway paid to the included personal judgment clerk of the district court the reagainst Conway for $2,612. On De- mainder of the sum necessary to efcember 14, 1910, an order for the fect redemption. sale of the property was issued. On The testimony of Hess was taken December 30, 1910, a building form, by interrogations propounded to ing a part of the mortgaged prem- him and answered under oath on Noises was destroyed by fire. On Jan- vember 22, 1912. In answer to one uary 19, 1911, the sheriff's sale oc- of the questions Hess stated that curred, which was confirmed on since February 24, 1911, Holmes February 6, 1911. The sale was had not sent him any money on the made to the plaintiff Hess, and the Conway judgment. Following this certificate of purchase was issued to interrogatory was another, asking him, but it was immediately as- him to state when and how much signed to Harder in consideration money he had received from Holmes

a

(92 Kan. 787, 142 Pac. 253.) on the Conway judgment, if any had the clerk of the court had them, and been received, but the second inter- that the clerk would furnish the rogatory was unanswered. Some figures. Holmes had possession of months later Hess made an affidavit the insurance policy which had been that he received from Holmes per- procured on the Durand hotel. Aftsonal checks for the proceeds of the er the last payment by way of reinsurance money, which he cashed, demption had been made, Holmes, but he did not modify his earlier without objection, delivered the testimony. The insurance money policy to Conway upon Conway's was more than sufficient to satisfy paying for it. The period of rethe excess judgment against Con- demption expired on July 19, 1912. way, if so applied, but the judgment On August 12th Holmes as Harder's has never been released.

attorney filed the motion which is The certificate of purchase in- the basis of the present controversy. cluded a hotel building at Durand, There were two full hearings on which needed insurance, and on the motion to require the sheriff to June 1, 1911, Holmes presented to make a deed, one in August, 1912, the court an application for the ap- and the other in February, 1913. pointment of a receiver in order C. F. Harder filed an affidavit in the that insurance might be effected. cause, but he gave no testimony in The application was made in the denial of Conway's contention that name of C. F. Harder's son, F. H. Holmes had been his attorney from Harder, and was supported by an the inception of his interest, or that affidavit of F. H. Harder that he he was ignorant of the payment of owned the certificate of purchase. the insurance money to Holmes, unOn October 23, 1911, Holmes again der the agreement that it would be presented a motion in the case, sup- applied to the redemption of the ported by his own affidavit that F. property.

property. The clerk of the court H. Harder was the owner of the made the following certificate, which certificate of purchase. This af- was read in evidence: "I hereby fidavit stated that F. H. Harder certify that beginning with the Nohad advanced the sum of $25.80 to vember term, 1902, of this court the insure the property, and the pur- name of C. F. Harder appears on pose of the motion was to secure the trial dockets of this court as a the appointment of a receiver to litigant forty-two (42) times, and collect rents to pay this sum and to at each of said times S. C. Holmes make some repairs. C. F. Harder

C. F. Harder has appeared as his attorney. I was in fact the owner of the certifi- also certify that at each of said cate of purchase at all times subse- terms of court during the ten years quent to its assignment to him, and from November, 1902, to and inF. H. Harder and Holmes were act- cluding November, 1912, except Noing for him in the various matters vember, 1910, March, June, and Noreferred to.

vember, 1911, and March, 1912, the While F. H. Harder was acting name of C. F. Harder appears as litifor his father, Conway had a con- gant on the docket of this court and versation with him, in which he was S. C. Holmes appears as his attold that Conway had paid $1,075 torney.” to his father's attorney, Holmes, for The property involved is estimatthe purpose of redeeming the prop

ed to be worth $3,500. If redemperty. Before the final payment by tion did not occur, Harder would be way of redemption was made, Con- the beneficiary of a good bargain, way had a conversation with Holmes, and the excess judgment in favor of in which Conway inquired the

inquired the Hess above the sale price would be amount necessary to redeem after satisfied. . deducting the sums already paid. Section 488 of the Civil Code reads Holmes replied that he did not have as follows: "The mode of redempall the dates of payment, but that tion as herein provided is by paying the money into the office of the clerk agent of any party in interest. But of the district court for the use of interested parties may bind themthe persons thereunto entitled. The selves by contracts departing from person so redeeming, if not the de- the statute as to time, terms, and fendant owner in execution or order mode of redemption, and they may of sale, must also file his affidavit or otherwise place themselves in such that of his agent, or attorney, stat- situations that a strict application ing as nearly as practicable the of the letter of the statute would acamount still unpaid due on his claim. complish a fraud in favor of the perThe clerk shall give him a receipt son demanding it. If, in the case of for the money, stating the purpose Stewart v. Park College, Stewart for which it is paid. He must also had found the members of the board enter the same upon a book' kept for of trustees at their office, and they that purpose, with a minute of had accepted his certified check for

a such redemption, the amount paid, the full amount of the judgment and and the amount of the lien of the interest, they would have been last redemption or as sworn to by estopped to dispute the fact that rehim." Gen. Stat. 1909, $ 6083. demption had been made. In all

Harder argues that nothing less cases of the character indicated, than actual payment to the clerk of the court will deal with the question the district court will effect redemp- of redemption as the law and as tion, and cites the case of Stewart v. equity and good conscience may rePark College, 68 Kan. 465, 467, 75 quire. Pac. 491, in which it was said: "The On the eve of the sheriff's sale, right to redeem and the mode of Holmes and Hogueland, as attorneys redemption of real estate, after sale for their respective clients, agreed by the sheriff upon execution, spe- that the insurance money should cial or general, or order of sale, are be applied to the redemption of the fixed by statute."

land. Hess purchased at the sherThe judgment in the case cited iff's sale subject to this condition, was entered in Wyandotte county. and when he assigned the certificate The facts upon which equitable re- of purchase he and Holmes knew demption was claimed were the fol- that the insurance money would go lowing: “In his petition plaintiff to redeem the land, and not to satfurther averred that frequently, be- isfy the excess judgment. This is fore the expiration of the eighteen the turning point in the case. Mr. months from the date of sale, he Holmes claims he understood the went to the place of business of the agreement with Mr. Hogueland difboard of trustees, in Missouri, with ferently. After carefully consida certified check for the full amount ering all the strong arguments for of the judgment and interest there- this view, this court, as already on, with a view and for the purpose stated, feels that the trial court was of redeeming the premises from the best able to determine the matter. foreclosure sale; that before each The result is that Holmes could effort made by him to redeem he

draw the first payment of insurnotified the board of trustees of the

ance money from the clerk of the fact that he would call and make court, who had received and receipt. such redemption, and that upon ed for it for redemption purposes, each occasion they failed to be pres- for the benefit of no one but the ent.” 68 Kan. 466.

holder of the certificate of purchase, The court said that Stewart not who at that time was Harder; and only did not comply with the stat- Holmes received the proceeds of the ute, but made no effort to do so. draft for the second instalment of

The statute very properly pro- insurance money for the benefit of vides for redemption by payment to Harder. Soon afterwards Holmes the clerk of the court, who acts is found in court, engaged in the an officer of the law, and not as the protection of Harder's interests as

of

money.

(92 Kan. 787, 142 Pac. 253.) a holder of the certificate of pur- to the client to the second transacchase. Holmes had complete knowl- tion, but he will be affected with edge of all the facts relating to the notice of both.” Melms v. Pabst insurance money. Harder's son and Brewing Co. 93 Wis. 153, 166, 57 agent, F. H. Harder, was informed Am. St. Rep. 899, 66 N. W. 522. that Holmes had received $1,075 to If Harder himself did not know apply in redemption of the prem- the facts relating to the insurance ises, and Harder himself is noncom- money, the actual knowledge of his mittal on the subject of his knowl- son, F. H. Harder,

-knowledge edge. The general finding doubtless acquired while in ot ngentincludes a finding that Harder him- active charge of his payment of self had knowledge of the facts re- interest in the land lating to the insurance money. If as a holder of the certificate of purnot, the actual knowledge of his at- chase, will be imputed to him under torney will be imputed to him. It well-settled principles of law. was the duty of the attorney to com- With knowledge of the facts, municate his knowledge to his prin- Harder acquiesced in the application cipal, the presumption is that he which had been made of the insurdid so, and the principal is not al- ance money, and suffered Conway to lowed to dispute the presumption. redeem on that basis. If Harder de2 R. C. L. 962. Let it be conceded sired to repudiate the application of that, in making the transfer of the the insurance money which had been certificate from Hess to Harder, agreed on and which Conway underHolmes acted as attorney for Hess.

stood had been made, he should have When he was employed by Harder

done so when reminded that his atto protect Harder's interest in the torney held for him $1,075, which land as a holder of the certificate of Conway had paid by way of repurchase, in the very manner of in

demption. After that he could surance, it could not

not remain silent, Notice knowledge of have escaped his and thereby induce deny redemp:

Estoppel-to attorneyjudicial sale.

memory that he had Conway to complete thon-permitting

received $1,075 of redemption by payinsurance money to apply on the re

ing only the balance above the indemption of that certificate.

surance money; and then, after the "Notice to an agent or attorney is period for redemption had expired, notice to his principal or client in

deny that redemption had been acregard to the matter in which he is

complished. engaged; and, where a purchaser

The court of its own motion employs the same attorney as the

ordered Holmes to deposit in the ofvendor, he will be affected with

fice of the clerk of the district court, notice of whatever such attorney ac

within thirty days, the sum of quired notice of, in his capacity of attorney for either vendor or pur

$1,075, with interest on $500 from chaser, in the transaction in which February 25, 1911, and interest on he was so employed. Notice to the $575 from March 31, 1911, at 10 per attorney which will bind the client cent per annum.

The sum

SO must be notice in the particular ordered to be deposited, together transaction in which the client has with the sum of $783.03 already on employed him. So, where one of two deposit as redemption money, was matters transacted by the same at- directed to be used in the redemptorney, though the former was for tion and cancelation of the certifianother client, follows so soon after cate of purchase. The cause was the other that it clearly appears that reserved for such orders and dethe earlier transaction cannot have crees as may be necessary to carry been out of the mind of the attorney into effect the

into effect the other orders made. when engaged in the latter, there is Holmes appeals. no ground for restricting the notice Holmes insists that he was not a

.

power.

party to the action; that he had not mary disciplinary power to enforce been served with process; that no honorable conduct pleadings were on file charging him on the part of its -disciplinary with liability which he could an- own officers. Usualswer; and that the evidence was in- ly the power is invoked to compel atsufficient to sustain the order. The torneys to do justice toward their question as to what became of the

clients in matters connected with money is interesting, but not ma

litigation, but it may be exercised to terial. In his affidavit, which af- compel the performance of duties to forded him full liberty to express

others than clients, and it extends

to any matter in which the attorney himself, Hess did not say that he

has been employed because of his was mistaken in his former testi

professional character. Lynde v. mony, or that he did not under. Lynde, 64 N. J. Eq. 736, 58 L.R.A. stand the questions or the nature of 471, 97 Am. St. Rep. 692, 52 Atl. the information sought, and did not 694; Anderson v. Bosworth, 15 R. I. in any way excuse, explain, or de 443, 2 Am. St. Rep. 910, 8 Atl. 339; tract from the effect of his deposi- Re A Solicitor (1907] 2 K. B. 539, tion. Reading the affidavit and the 76 L. J. K. B. N. S. 931, 97 L. T. N. deposition together, he says he re- S. 212, 23 Times L. R. 573, 2 R. C. ceived the personal checks of Holmes L. 1026. for the insurance money, less attor- Beyond this, however, the court ney's fees, but not on the judg- has power to make disciplinary ment against Conway. Leaving this orders to remedy breaches of prosubject at one side, on February 24, fessional duty, independent of the 1911, Conway, through his attor: rights of clients and others. ney, paid to the clerk of the district

“The principle

is that court the sum of $500 as redemp- the court has a punitive and discition money, and took the clerk's re

plinary jurisdiction over solicitors, ceipt accordingly. Holmes could

as being officers of the court, which

is exercised not for the purpose of rightfully withdraw this money for no purpose unless to pay it to Hard- enforcing legal rights, but for the er.

purpose of enforcing honorable conThe draft for $575 which he cashed was redemption money also, officers. That power of the court is

duct on the part of the court's own and, if not paid to Harder, ought to

quite distinct from any legal rights be in the hands of the clerk. It is

or remedies of the parties, and canconceded that Harder received none

not, therefore, be affected by anyof the money. The order, there thing which affects the strict legal

. fore, is a summary one, made by rights of the parties.. :So, if

the court in a pend- a solicitor obtains money by process Attorneycompelling ing proceeding to

of law for his client, quite irrespecsecure restoration to

tive of any legal liability which may the treasury of the be enforced against him by the court of moneys arising from the

client, he is bound, in performance litigation, which the attorney has of his duty as a solicitor, to hand it diverted. The ultimate destination

over to the client, unless he has a of the money is not now important. valid claim against it. If he spends While the deposit, when made, is to it, or if, still having it, he refuses inure to the benefit of Harder, the to hand it over, he commits an oforder was not made for his express fense as an officer of the court, benefit, but to protect the integrity which offense has nothing to do of the court itself in the course of with any legal right or remedy of the administration of justice. the client." Re Grey [1892] 2 Q. B.

It does not require the citation of 440, 443. authorities to demonstrate the juris- In the present case the court was diction of the court to exercise sum- acting in its own behalf to secure

payment into court.