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Imputation of attorney's knowledge of facts to his client.

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This note is confined to the question whether knowledge of facts possessed by an attorney is imputable to his client. It does not include a discussion of the right to serve notice upon an attorney in a proceeding. Whether an intention on the part of an attorney for an insolvent to give a preference is imputable to his client is not discussed. It may be stated in passing that it has been held that it will be so imputed; so to impute this intention is held to be within the principle that knowledge of the attorney is imputable to the client.1

It is not questioned that the general rule of agency, that notice to or knowledge possessed by an agent is imputable to the principal, applies in the relation of attorney and client.la As pointed out below, this general statement is subject to some limitations, but for introductory purposes it may be used as a sufficiently accurate statement of the rule. The extent of the attorney's employment, as affecting

1 Sartwell v. North (1887) 144 Mass. 180, 10 N. E. 824.

See Bank of Commerce v. Hoeber (1885) 88 Mo. 37, 57 Am. Rep. 359, infra, note 11.

la See cases cited in note 9, infra. The rule that a purchaser of land is chargeable with constructive notice of all the facts communicated to his attorney for the purchase, or obtained in the examination of the title, has been held not to apply to a contest between the vendor and the vendee in relation

IV. b-continued.

2. Vendor and purchaser,

mortgagor and mort-
gagee, 1612.

V. Facts acquired prior to the em-
ployment, 1614.

VI. Attorney acting in his own interest, or in fraud of his client, 1618. VII. Knowledge of partner or clerk of attorney, 1621.

VIII. Knowledge of general attorney, 1621.

the question of notice, has not received consideration in many cases. In one case, in which the knowledge of an attorney that a person had deeded away land was sought to be imputed to a client subsequently employ. ing the attorney to write and take the acknowledgment of a mortgage from such person, the court states: "The knowledge must be that of a person who is executing some agency, and not acting merely in some ministerial capacity, as servant or clerk. For instance, if in the present case

[the attorney] had merely taken the acknowledgment of the deed to the bank, or had transcribed the deed as a clerk or copyist, such acts would not have imposed a duty to impart his knowledge to the bank. But if employed to obtain the title for the bank by a deed to be drawn by him for the purpose, that would place the transaction within the rule." There is some authority to the effect that, to bring an attorney within the operation of the rule that notice to him is

to their own rights. Champlin v. Laytin (1836) 6 Paige (N. Y.) 189.

2 Fairfield Sav. Bank v. Chase (1881) 72 Me. 226, 39 Am. Rep. 319. The court continues: "In the case before us, Brown was employed by the bank to make an instrument to convey a title from a person to the bank. We think such a case comes reasonably within the rule, though it is not so marked a case as it would be if Brown had been employed by the bank to ascertain if the grantor

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imputable to his client, "he must be employed in some other capacity than as a mere professional and legal adviser; he must be employed to represent his client in a transaction whereby the principal is to acquire some rights, or is to be subjected to some liabilities." 3 The extent of the attorney's employment as bearing upon the imputation of notice is further illustrated in the cases cited infra, II. c, of employment of an attorney by a purchaser of property, to pass upon the title thereto.

It is apparent that if the relation of attorney and client does not exist there can be no imputation of notice.

It has been held that an attorney employed not by the creditor, but by a collection agent, who undertakes the collection of the debt, is the agent of the collecting agent, and not of the creditor who employs that agent; therefore, such attorney's knowledge of the bankrupt condition of the vendor is not imputable to the creditor. It has been held that creditors who have handed a claim to their attorney for collection, which claim is forwarded by the attorney to other attorneys at the place of residence of the debtor, are not chargeable with knowledge of the latter attorneys, who obtained a confession of judgment and collected the claim, of an intent to give a fraudulent preference in violation of the Bankruptcy Act. The court argued: "There was no relation of attorney and client, or principal and agent, between the . attorneys [to whom the claim was sent by the creditors' attorney] and the defendants, which, by construction, can charge them with the knowledge of the affairs of [the debtor] they [said attorneys] had, or of any action of theirs had in fraud of the Bankrupt Law. . . . In any view they were not commissioned or authorized to commit any fraud what

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had the title, and if he had, then, to make the deed."

32 Pom. Eq. Jur. § 668. This statement is approved in Arrington v. Arrington (1894) 114 N. C. 151, 19 S. E. 351, holding that knowledge possessed by an attorney who was merely consulted as to title to land, but not employed to negotiate the purchase or to


ever which can be imputed to the defendants. No instructions were given them, and no communication had with them, and the defendants did not even know what lawyers had charge of the claim and the agents employed by them had no instructions to subject their clients to any of the penalties of fraud, but only to do their best to collect the debt; and it does not appear to me that if, in their zeal, any of the provisions of the Bankrupt Act has been violated, this knowledge can be imputed to the defendants within the meaning of the act." A purchaser of land from a trustee has been held not chargeable with knowledge of the trust because of the employment of a clerk in the office of the trustee's solicitor, where the solicitor had no notice of the purchase until it had been completed. It is assumed in the present note that the relation of attorney and client does exist, and cases denying the imputation of notice on the theory that this relation did not exist are not generally included herein.

II. Theories.

There are at least two distinct theories upon which the knowledge of facts possessed by an attorney is imputed to the client. One theory is that of the unity of the attorney and client. A modification of this idea is expressed in the language that the client knows what the attorney knows. Another theory is that it will be presumed that the knowledge was communicated to the client. The presumption that the agent has communicated the facts known to him is as conclusive as the presumption that the principal remembers facts brought home to him personally. It cannot be rebutted by showing that the agent did not in fact impart such information, at least, the client is chargeable acquire the title, is not imputable to a purchaser.

4 Hoover v. Wise (1876) 91 U. S. 308, 23 L. ed. 392.

5 Hoover v. Greenbaum (1874) 61 N. Y. 305.

6 Northwest Constr. Co. v. Valle (1906) 16 Manitoba L. Rep. 201.

in the same manner as if personal notice had been communicated to him. In other words, it is one of those anomalies of the law known as a conclusive presumption. More accurately speaking, it is not a presumption at all; it is a rule of law which charges

a client with the knowledge possessed by his attorney. This is sometimes called constructive notice; other courts, particularly some English courts, prefer to characterize it as imputed notice. This constructive or imputed notice to the client must be distinguished from the mere rebuttable presumption, held by some courts to exist, that knowledge possessed by the attorney when acting for his client will be communicated.

7 Miller v. Fraley (1860) 21 Ark. 22. Notice to an attorney for the purchaser of land from one who purchased at an execution sale that such purchaser at the execution sale held for the execution debtor, by reason of which the sale to him was fraudulent and void as to other creditors, is imputable to the client. Coryell v. Klehm (1895) 157 Ill. 462, 41 N. E. 864.

Green v. Stevenson (1905) 9 Ont. L. Rep. 671, holding a purchaser of land chargeable with knowledge of her solicitors, while acting for her, of a previous agreement of sale by the vendor.

Jennings v. Carter (1890) 53 Ark. 242, 13 S. W. 800, holding that a purchaser through an attorney at a fraudulent execution sale is affected by the notice of fraud possessed by his attorney, who, as attorney for the execution creditor, conducted the proceeding. See infra, IV., as to facts acquired in course of employment by another client.

9 United States.-May v. Le Claire (1870) 11 Wall. 217, 20 L. ed. 217; Smith v. Ayer (1880) 101 U. S. 320, 25 L. ed. 955; Rogers v. Palmer (1880) 102 U. S. 263, 26 L. ed. 164; Armstrong v. Ashley (1907) 204 U. S. 272, 51 L. ed. 482, 27 Sup. Ct. Rep. 270.

Alabama.-Wiley v. Knight (1855) 27 Ala. 336; Price v. Carney (1883) 75 Ala. 546; Silvey v. Cook (1914) 191 Ala. 228, 68 So. 37.

Arkansas. - Allison V. Falconer (1905) 75 Ark. 343, 87 S. W. 639; Singfield v. Vogler (1917) 127 Ark. 618, 192 S. W. 906.

California. - Munter V. Watson

III. General rules.

a. In general.

[4 A.L.R.

Some cases do not go beyond the general statement appearing in the introduction, supra, that knowledge of facts possessed by an attorney is imputable to his client, even though they involve facts that are, by other courts, regarded as imposing limitations upon the rule. The great majority of cases do not support this unqualified doctrine, but hold, with certain exceptions hereinafter discussed, that knowledge of facts relating to the subject-matter of the employment, acquired while the attorney is engaged in the discharge of his duties under the employment, is imputable to his client. According (1859) 12 Cal. 363, 73 Am. Dec. 543; Bierce v. Red Bluff Hotel Co. (1866) 31 Cal. 160; Watson v. Sutro (1890) 86 Cal. 500, 25 Pac. 64, 24 Pac. 172; Mabb v. Stewart (1905) 147 Cal. 413, 81 Pac. 1073; Rauer v. Hertweck (1917) 175 Cal. 278, 165 Pac. 946; People v. Duncan (1908) 8 Cal. App. 186, 96 Pac. 414.

Colorado.-Davidson v. La Plata County (1899) 26 Colo. 549, 59 Pac. 46; Bunnell v. Holmes (1918) - Colo. 171 Pac. 365.

Connecticut.-Sweeney v. Pratt (1898) 70 Conn. 274, 66 Am. St. Rep. 101, 39 Atl. 182.

District of Columbia.-Patten v. Warner (1897) 11 App. D. C. 149.

Georgia.-Brown v. Oattis (1875) 55 Ga. 416; Jones v. Lamon (1892) 92 Ga. 529, 18 S. E. 423; see Lampkin v. First Nat. Bank (1895) 96 Ga. 487, 23 So. 390, infra, note 83.

Hawaii.-Tisdale v. The H. W. Almy (1882) 4 Haw. 503.

Illinois.-Williams v. Tatnall (1862) 29 Ill. 553; Webber v. Clark (1891) 136 Ill. 256, 26 N. E. 360, 32 N. E. 748.

Iowa.-De Louis v. Meek (1849) 2 G. Greene, 55, 50 Am. Dec. 491; Walker v. Ayres (1855) 1 Iowa, 449; Jones v. Bamford (1866) 21 Iowa, 217; Allen v. McCalla (1868) 25 Iowa, 464, 96 Am. Dec. 56; Walker v. Schreiber (1877) 47 Iowa, 529; Foy v. Armstrong (1901) 113 Iowa, 629, 85 N. W. 753; Cochburn V. Hawkeye Commercial Men's Asso. (1913) 163 Iowa, 28, 143 N. W. 1006.

Kentucky.-Barnes v. Com. (1918) 179 Ky. 725, 201 S. W. 318; Semonin v. Duerson (1891) 13 Ky. L. Rep. 169.

to the weight of authority, knowledge previously acquired is imputable if it was present to the attorney's mind

Louisiana.-Allen v. Frank Janes Co. (1918) 142 La. 1056, 78 So. 115.

Maryland. - Presstman V. Mason (1887) 68 Md. 78, 11 Atl. 764; Baltimore v. Whittington (1893) 78 Md. 231, 27 Atl. 984; Shartzer v. Mountain Lake Park Asso. (1897) 86 Md. 335, 37 Atl. 786.

Minnesota.-Bates v. A. E. Johnson Co. (1900) 79 Minn. 354, 82 N. W. 649; Riley v. Pearson (1913) 120 Minn. 210, L.R.A.1916D, 7, 139 N. W. 361.

Mississippi.-Allen v. Poole (1877) 54 Miss. 323; Edwards v. Hillier (1893) 70 Miss. 803, 13 So. 692.

Missouri.-Bank of Commerce v. Hoeber (1885) 88 Mo. 37, 57 Am. Rep. 359; Hedrick v. Beeler (1892) 110 Mo. 91, 19 S. W. 492; Priddy v. Mackenzie (1907) 205 Mo. 181, 103 S. W. 968; Hunter v. Wabash R. Co. (1910) 149 Mo. App. 243, 130 S. W. 103.

New Hampshire.-Butler v. Morse (1891) 66 N. H. 429, 23 Atl. 90.

New Jersey.-Dickerson v. Bowers (1886) 42 N. J. Eq. 295, 11 Atl. 142; Fidelity Trust Co. v. Baker (1900) 60 N. J. Eq. 170, 47 Atl. 6.

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New York. Griffith (1841) 9 Paige, 315; Westervelt v. Haff (1844) 2 Sandf. Ch. 98; Stone v. Schenectady R. Co. (1904) 99 App. Div. 44, 90 N. Y. Supp. 742; Hyde v. Bloomingdale (1898) 23 Misc. 728, 51 N. Y. Supp. 1025; Taft v. Wright (1873) 47 How. Pr. 1, affirmed in (1875) 59 N. Y. 656; Kendall v. Neibuhr (1879) 58 How. Pr. 156, affirmed in (1880) 14 Jones & S. 544, which is affirmed in (1881) 87 N. Y. 1.

North Carolina.-Greenlee v. McDowell (1847) 39 N. C. (4 Ired. Eq.) 481; Hulbert v. Douglas (1886) 94 N. C. 122; Bryant Mfg. Co. v. Hester (1919) - - N. C., 98 S. E. 721. Oklahoma. Bigsby V. Eppstein (1913) 39 Okla. 466, 135 Pac. 934; Lambert v. Smith (1916) 53 Okla. 606,

A.L.R. -, 157 Pac. 909; PYEATT v. ESTUS (reported herewith) ante, 1570. Pennsylvania.-Patterson's Estate (1912) 234 Pa. 128, 82 Atl. 1130; Barnes v. M'Clinton (1831) 3 Penr. & W. 67, 23 Am. Dec. 62; Mutual Bldg. & L. Asso.'s Case (1893) 19 Pa. Co. Ct. 504. Pennsylvania Cases cited in notes 38, 39, 68, 69.

South Carolina.-American Freehold Land Mortg. Co. v. Felder (1895) 44 S. C. 478, 22 S. E. 598; Peeples v.

when acting for the client, or, according to some cases, if it was acquired so shortly before the employment that Warren (1897) 51 S. C. 560, 29 S. E. 659; Scottish-American Mortg. Co. v. Clowney (1904) 70 S. C. 229, 49 S. E. 569, 3 Ann. Cas. 437.

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Texas.-Givens v. Taylor (1851) 6 Tex. 315; Van Hook v. Walton (1866) 28 Tex. 59; Riordan v. Britton (1887) 69 Tex. 198, 5 Am. St. Rep. 37, 7 S. W. 50; Smith v. Wilson & B. Sav. Bank (1892) 1 Tex. Civ. App. 115, 20 S. W. 1119; Bexar Bldg. & L. Asso. v. Lockwood (1899) Tex. Civ. App. - 54 S. W. 253; Presidio County v. Shock (1900) 24 Tex. Civ. App. 622, 60 S. W. 287; Missouri, K. & T. R. Co. v. Bacon (1904) Tex. Civ. App. 80 S. W. 572; Bradford v. Malone (1908) 49 Tex. Civ. App. 440, 130 S. W. 1013; Fordtran v. Cunningham (1911) Tex. Civ. App., 141 S. W. 562; Missouri, K. & T. R. Co. v. Wood (1913) Tex. Civ. App. 152 S. W. 487; Newton v. Easterwood (1913) Tex. Civ. App. - 154 S. W. 646; Mitchell v. Morgan (1914) Tex. Civ. App. 165 S. W. 883; Ives v. Culton (1917) Tex. Civ. App. 197 S. W. 619; Dowdy v. Furtner (1917) Tex. Civ. App. 198 S. W. 647. Vermont.-Hart v. Farmers & M. Bank (1860) 33 Vt. 252; Abell v. Howe (1871) 43 Vt. 403; Vermont Min. & Quarrying Co. v. Windham County Bank (1872) 44 Vt. 489, 3 Mor. Min. Rep. 312.

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Washington.-Wells V. McMahon (1888) 3 Wash. Terr. 532, 18 Pac. 73; Hyman v. Barmon (1893) 6 Wash. 516, 33 Pac. 1076; Deering v. Holcomb (1901) 26 Wash. 588, 67 Pac. 240, 561. England. Warrick V. Warrick (1745) 3 Atk. 291, 26 Eng. Reprint, 970; LeNeve v. LeNeve (1748) 3 Atk. 647, 26 Eng. Reprint, 1172; Sheldon v. Cox (1764) 2 Ambl. 624, 27 Eng. Reprint, 404; Fuller v. Bennett (1823) 2 Hare, 402, 67 Eng. Reprint, 165, 12 L. J. Ch. N. S. 355, 7 Jur. 1056; Tunstall v. Trappes (1830) 3 Sim. 286, 57 Eng. Reprint, 1005; Gosling's Case (1830) 3 Sim. 301, 57 Eng. Reprint, 1011; Harrison v. Wiltshire (1835) 4 L. J. Ch. N. S. 260; Brewin v. Briscoe (1859) 2 El. & El. 117, 121 Eng. Reprint, 45, 28 L. J. Q. B. N. S. 329, 5 Jur. N. S. 1206, 7 Week. Rep. 584; Rickards v. Gledstanes (1861) 3 Giff. 298, 66 Eng. Reprint, 423, 8 Jur. N. S. 455; Spaight v. Cowne (1863) 1 Hem. & M. 359, 71 Eng. Reprint, 156; Bour

he must be presumed to have remembered it.9a The weight of authority in support of the rule imputing previously acquired knowledge which is present to the agent's mind is more marked in cases of agents generally, than in cases dealing with attorneys. The exceptions above referred to, in which cases knowledge will not be imputed, are (1) with reference to knowledge acquired from such a source, or in such a way, that it would be improper for sot v. Savage (1866) L. R. 2 Eq. 134, 35 L. J. Ch. N. S. 627, 14 L. T. N. S. 299, 14 Week. Rep. 565; Dixon v. Winch [1900] 1 Ch. 736, 82 L. T. N. S. 437, 69 L. J. Ch. N. S. 465, 48 Week. Rep. 612, 16 Times L. R. 276.

Canada.-McCauley v. Butler (1902) 1 Ont. Week. Rep. 72; Real Estate Invest. Co. v. Metropolitan Bldg. Soc. (1883) 3 Ont. Rep. 476.

9a See V., infra, and cases in notes, 19-22.

10 Rogers v. Palmer (1879) 102 U. S. 263, 26 L. ed. 164, charging an execution creditor with the knowledge of his attorney of the debtor's insolvency, and of an intent to evade the Bankrupt Law.

Davidson v. La Plata County (1899) 26 Colo. 549, 59 Pac. 46. Knowledge of attorneys for the assignee of a judgment that attorneys for the assignor intended to claim a lien on the judgment for their services, is knowledge of the client.

Patten v. Warner (1897) 11 App. D. C. 149. Knowledge of a general attorney for certain persons, of the profit made by one claimed to be a trustee for such persons in a sale of property to them, is knowledge of the persons. The knowledge was acquired shortly after the sale. The court states that the attorney had been attorney for these persons, "specially, in this whole transaction with the appellee; he had even been specially charged by them to ascertain what profit, if any, the appellee had made."

Walker v. Ayres (1855) 1 Iowa, 449, holding that knowledge of an attorney employed with reference to the assignment of a judgment, of claims of the judgment debtor to credits, acquired in negotiating for the assignment, is imputable to the client.

Foy v. Armstrong (1901) 113 Iowa, 629, 85 N. W..753, holding knowledge of the attorney for a mortgagee that one who had assumed the right to release a prior mortgage did not have

the attorney to make a disclosure thereof (see IV. infra); and (2) cases in which the attorney is acting in his own interest or is acting fraudulently (see VI. infra).

There are various statements of the rule. In a number of cases, in which the knowledge of an attorney is imputed to his client, it appears merely that the knowledge was acquired in the course of the attorney's employment;10 in some such cases the court states possession of the mortgage he assumed to release, nor of the note secured thereby, is imputable to the client.

Allen v. Frank Janes Co. (1918) 142 La. 1056, 78 So. 115, charging a purchaser of land with facts shown on an abstract of the title thereto, examined by his attorney.

Hedrick v. Beeler (1892) 110 Mo. 91, 19 S. W. 492, imputing to an applicant for a patent to certain lands, notice to an attorney who assisted him in procuring the title. Just what knowledge the attorney possessed is not clearly stated.

Griffith v. Griffith (1841) 9 Paige (N. Y.) 315, holding notice to an attorney employed to examine the title to premises which the client was about to purchase, of an equitable claim of a third person, constructive notice to the purchaser.

Westervelt v. Haff (1844) 2 Sandf. Ch. (N. Y.) 98, holding that notice to the solicitor of a subsequent mortgagee, who prepared the securities in his behalf, of a prior mortgage, was notice to the client.

Hyde v. Bloomingdale (1898) 23 Misc. 728, 51 N. Y. Supp. 1025, imputing to a client knowledge of the fraudulent intent of an insolvent debtor, to whom the client furnished money on the security of a mortgage, possessed by the attorney.

Stone v. Schenectady R. Co. (1904) 99 App. Div. 44, 90 N. Y. Supp. 742, holding a patron of an electric lighting company, from whom the current had been cut off, chargeable with notice to her attorney as to when it would be restored.

Kendall v. Neibuhr (1879) 58 How. Pr. (N. Y.) 156, affirmed in (1880) 14 Jones & S. 544, which is affirmed in (1881) 87 N. Y. 1, holding the knowl edge of an attorney, employed by a mortgagee about to release part of the property, to make the necessary searches and prepare the releases of &

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