mote and consequential, but one contemplated by the defendant at the time as one of the results, the party guilty of the fraud is responsible to the party injured. Langridge v. Levy, 4 Mee. & W., 337.

Abstracts of titles and certificates of the same are frequently if not usually made by recorders, prothonotaries or clerks, and in some states their liability is prescribed and regulated by statute. Sess. Laws (Pa.), 1872, 1040. By that act those officers are declared liable for all loss or damage which may happen by reason of any false or erroneous certificate of search, not only to the person or persons to, for or upon whose order the said certificate of search is made or given, but also to any person or persons claiming title through, from or under such person or persons, or who may suffer loss by reason of the making or giving of any such false or erroneous certificate. But it is unnecessary to enter into any discussion of such regulations, as it is clear that there are none such in this District which can have any application in this case.

§ 157. Local usage cannot make a contract for parties.

Testimony was introduced at the trial tending to show that there is a local usage in the District that the attorney examining the title of such an applicant for a loan shall be considered as also acting for the lender of the money, and complaint is made that the court below did not submit that evidence to the jury with proper instructions. Evidence of usage is not admissible to contradict or vary what is clear and unambiguous, or to restrict or enlarge what requires no explanation. Omissions may be supplied in some cases by such proof, but it cannot prevail over or nullify the express provisions of the contract. So, where there is no contract, proof of usage will not make one, and it can only be admitted either to interpret the meaning of the language employed by the parties, or where the meaning is equivocal or obscure. Thompson v. Riggs, 5 Wall., 663, 679. Suffice it to say these parties never met, and there was no communication of any kind between the defendant and the brokers, or the lenders of the money. Nothing of the kind is pretended, the only suggestion in that direction being that it may be held that the applicant for the loan, when he employed the defendant, may be regarded as the agent of the plaintiffs. Such suggestion being entirely without evidence to support it, is entitled to no weight, especially as it appears that the principal certificate was procured several days before any interview upon the subject of the loan took place between the brokers and the plaintiffs.

Judgment affirmed.

Dissenting opinion by WAITE, C. J., JUSTICES SWAYNE and BRADLEY concurring.

I am unable to agree to the judgment in this case. I think if a lawyer, employed to examine and certify to the recorded title of real property, gives his client a certificate which he knows or ought to know is to be used by the client in some business transaction with another person as evidence of the facts certified to, he is liable to such other person relying on his certificate for any loss resulting from his failure to find on record a conveyance affecting the title. which, by the use of ordinary professional care and skill, he might have found. That, as it seems to me, is this case. Ward was employed by Chapman to examine and certify to the title to a certain lot in Washington. The circumstances were such as ought to have satisfied him that his certificate was to be used by Chapman in some transaction with another person as evidence of the facts certified to. In examining the records he overlooked a deed, in all respects

properly recorded, which showed on its face that Chapman had conveyed the lot away in fee-simple, and certified as follows: "Lot 55, in Chapman's subdivision of lots, in square 364. The title of Leonard S. Chapman to the above lot is good and the property is unincumbered. Wm. H. Ward." The National Savings Bank, relying on this certificate as true, loaned Chapman $3,500, taking for security a deed of trust of the lot. It seems to me that under these circumstances Ward is liable to the bank for any loss it may sustain by reason of his erroneous certificate.

ROGERS v. MARSHALL.

(Circuit Court for Colorado: 3 McCrary, 76-95. 1881.)

§ 158. Purchase from client of subject matter of litigation. Opinion by MCCRARY, C. J.

1. It is not necessary to decide the question whether an attorney at law can, under any circumstances, purchase pendente lite from his client, the subject matter of a litigation in which he is employed and acting.

2. Equity will not uphold such a sale even upon a showing of good faith, where it appears, as in this case, that the attorney, while negotiating for the purchase of the property, was at the same time, and as part of the negotiation, advising the client as to the probable outcome of the litigation concerning it. It is difficult to see how it is possible for an attorney, under such circumstances, to deal with his client at arms-length; for the client's acceptance or rejection of any proposition for a purchase by the attorney must depend upon the nature of the advice he receives from him touching the pending litigation. In other words, the attorney must, as to an important part of the negotiation, represent both sides; that is, his own private interest and the opposing interest of his client,— a thing which is manifestly contrary to law and abhorrent to equity. The client must in such a case act upon the attorney's advice and opinion as to the merits of the pending litigation about the property, and by the light of such advice he must fix the price at which he will sell. Even if under some circumstances the property in controversy in a suit may, pending the suit, be sold by the client to the attorney, I am of the opinion that a court of equity ought to hold that such a sale is absolutely void, if the attorney, while negotiating as a purchaser, is called upon to advise the client as an attorney, as to how far a pending litigation is likely to affect his title to the property or the value of his interest therein. It is contrary to the policy of the law, and certainly contrary to the principles of equity, to permit an attorney at law to occupy at the same time and in the same transaction the antagonistic and wholly incompatible position of adviser of his client concerning a pending litigation, threatening the client's title to property, and that of purchaser of such property from the client. If an attorney can deal with his client concerning such property at all, he must, before doing so,- for the time, at least,- divest himself of the character of attorney, so that his former client may deal with him as a stranger. This is not the case when the attorney negotiates with the client as the purchaser of such property, and at the same time advises him as counsel concerning the title to it, or concerning its value, as affected by pending litigation.

§ 159. Onus is upon attorney to show fairness of sale to him by his client. 3. To sustain a sale from client to attorney, the burden is upon the latter, and he must show that he has done as much to protect the client's interest as he

would have done in the case of his client's dealing with a stranger. The court will watch such a transaction with jealousy and throw on the attorney the burden of proving that the bargain is, generally speaking, as good as any that could have been obtained by due diligence from any other purchaser. An attorney cannot in any case sustain a purchase from his client without showing that he communicated to such client everything necessary for him to form a correct judgment as to the real value of the subject of the purchase, and as to the propriety of selling for the price offered; and neglect of the attorney to inform himself of the state of the facts will not enable him to sustain a purchase from his client for an inadequate consideration. The attorney must show that all the considerations which should have operated to prevent the sale by the client were presented by him with the earnestness of a man who was anxious only for the client's good. It must be made to appear that the client is no worse off than he would have been had he consulted an adviser who had no interest and no selfish end in view. It must appear also that the attorney took such measures to inform himself as to the value of the property offered for sale by the client as are ordinarily taken by persons dealing in such property under like circumstances, and that being himself thereby informed, he communicated all his information upon the subject to his client. Authorities by which these. general rules are established will be found cited in Weeks, Attys. at Law, under the head of "Dealings between Attorney and Client," 450-469, and in 2 White & Tudor, Lead. Cas. in Eq. (Hare & Wallace's Notes), part 4, pp. 12161225. It does not, in my opinion, appear that respondent Marshall cautioned and advised his client, the complainant, as fully as the law, as above set forth, required.

§ 169. Duty of attorney to ascertain value of property before advising as to its sale.

An attorney who knows nothing of the value of property offered for sale by · his client, and is aware that his client is in like ignorance upon that subject, is bound, before advising a sale by the client to a stranger, and a fortiori, before attempting to purchase from the client himself, to make careful inquiry and to inform himself as fully as possible concerning such value. If a stranger had appeared and opened negotiations with complainant for the purchase of her interest in the mine, and she had applied to Marshall, as her attorney, for advice concerning the sufficiency of the price offered, it would have been his duty, being himself ignorant upon the subject, to advise an investigation by a competent person, as a means of ascertaining the probable or approximate value of the property. It is true that Marshall had, up to the time when negotations for a purchase by him commenced, been the attorney of complainant only for the purpose of defending her title, and having no occasion to inquire into the question of the value of the mine; but the moment these negotiations were opened the relation was changed, and it became his duty to use due diligence to ascertain the value of the property as nearly as possible, and to advise complainant or her agent. It was at least his duty to suggest an investigation by the usual method. If he had, without knowledge as to the value of the property, and without suggesting an investigation, advised a sale to a third party at a price which proved to be inadequate, it is clear that he would have failed in his duty, and it is equally clear that he could not purchase under like circumstances. His own ignorance as to the value of the property, so far from being a circumstance in his favor, is a strong reason for holding that he was bound to inform himself, so as to be able to advise his client.

§ 161. Attorney, before purchasing, must make full disclosure.

4. I hold further that the respondent Marshall, before consummating his purchase from complainant, was bound to disclose to her, or her agent, the names of all persons interested with him in the purchase, and especially that her partners in the mine were secretly interested as such purchasers. The rule is that the attorney must make a full disclosure of every fact which might influence the decision by the client of the question of the sale. All the presumptions are against the attorney. The court cannot presume that the fact that her partners were secret purchasers with Marshall would have had no influence upon complainant's mind, if disclosed. If it had been known by her that her copartners wished to purchase part of her interest, and yet did not wish her to know the fact, and had therefore employed Marshall to purchase in his own name for them, it might well have aroused suspicion in her mind, and very probably would have led her to decline to sell, or caused her to employ other counsel, or to institute further inquiry as to the character and value of the property. It has been held that if an attorney can show that he is entitled to purchase property, notwithstanding his character of attorney, yet if, instead of openly purchasing it, he purchases it in the name of a third person without disclosing the fact, the purchase is void. Weeks, Attys. at Law, 463, and cases cited. The same rule must prevail where the attorney, while professing to purchase for himself from his client, really purchases in part for his client's copartners, and suppresses this fact.

$162. Purchaser chargeable with notice.

5. The parties interested with Marshall in the purchase, and who afterwards took conveyances from him, stand in his shoes, so far as the complainant's rights are concerned. They knew that the relation of attorney and client existed between complainant and Marshall, and they took the chances as to the validity of the latter's purchase. If the sale was void as to him, it is also void as to them, and in that case it is unnecessary to inquire into the allegations or examine the proofs as to misconduct on the part of complainant in connection with the sale in question. When an attorney purchases from his client in his own name, but in secret trust for third parties, it will not, of course, be insisted that such third parties can be regarded as innocent purchasers, or as entitled to any greater rights or better title than the attorney himself secures.

ON PETITION FOR REHEARING.

Opinion by MCCRARY, C. J.

This important case has been exhaustively reargued by eminent counsel upon a petition for rehearing based (1) upon the record as it stood at the former hearing, and (2) upon alleged newly discovered evidence. The questions raised, some of them now for the first time, have been carefully considered, and the conclusions reached are as follows:

§ 163. Voidability of sale from client to attorney discussed and reaffirmed. 1. On the former hearing it was held, as will be seen by the opinion then announced, that an attorney at law cannot purchase from his client the subject matter of litigation in which he is employed and acting, if, as a part of his negotiations for the purchase, he advises his client as to the probable outcome of the litigation and its effect upon the value of the property he is seeking to purchase. Counsel for respondents, both upon the former hearing and upon the reargument, have insisted that such is not the law, and that if, under such

circumstances, the attorney can show that he gave honest and sound advice concerning the pending litigation, and otherwise discharged the duties imposed upon him by fully disclosing all his knowledge of the value, etc., the sale is valid. There are certainly some respectable authorities holding that a purchase by an attorney from his client of the subject matter of the litigation pendente lite is void not only for champerty, but also on grounds of public policy. West v. Raymond, 21 Ind., 305; 4 Kent's Com. (10th ed.), 530; Simpson v. Lamb, 40 Eng. Law & Eq., 59; Hall v. Hallett, 1 Cox, 134; Wood v. Downes, 18 Ves., 120. I will assume, however (without deciding), that the rule is the other way; and that an attorney may purchase from his client the subject matter of the suit in which he is employed and acting; provided, before the negotiations are opened, the relation of attorney and client is ended, or at least for the time being suspended, and the client placed in a position to deal with the attorney upon terms of perfect equality. It may be conceded that such is the rule, and still the doctrine heretofore announced in this case may be perfectly sound. According to all the authorities, it is, at all events, clear that in order to uphold such a transaction the client must be placed in a position such as to enable him to deal with the attorney at arms-length. The relation of attorney and client must be, so far as the transaction of purchase and sale is concerned, dissolved and ended. In that transaction the attorney cannot act as such. If it becomes necessary or desirable for the client to be advised as to the nature of the pending litigation and the danger to his title to be apprehended therefrom, as a means of determining the question of selling or of fixing the price, the attorney must decline to give him advice upon those points and the client must employ other counsel, or act upon his own judgment. There is a plain and necessary distinction between the right of the attorney, under such circumstances, to give the client information touching the value of the property in the market, and his right to advise him upon the legal questions involved in the pending litigation. As to the former, the attorney and client may be equally well advised, and when they are so advised they may stand on an equality and at arms-length; but as to the latter this is not so. The questions of law presented by a litigation in which the attorney has been employed are matters within his own peculiar knowledge; he deals with them as an expert; they are frequently questions of a technical, and always of a professional character. They are often questions which go to the very root and marrow of the inquiry which the seller must make in determining the price at which he will sell. This is well illustrated by the present case, since it appears that Marshall, the attorney, was defending for the complainant and others certain suits involving the validity of her title, and which, if decided adversely to her, would have destroyed every vestige of her property in the mine. It follows, therefore, that to decide the question whether these suits were well grounded, or whether there was danger of a decision therein adverse to complainant, was to decide upon the question of the value of complainant's interest. To allow Marshall to advise her or her agent upon this question was to enable him to influence materially the fixing of the value of the property while negotiating for its purchase. The law will not permit an attorney to deal with his client in this way. Such dealing is manifestly against the policy of the law; as much so as a purchase by a guardian from his ward, or that of a trustee from his cestui que trust. Such transactions are not held to be void upon the ground of intentional fraud, or proven bad faith; but because the relations of the parties are such that the one may make use of his position of power and influence over the other, or of