Sec 160

Abuses of personal influence for the undue enrichment of the party exercising it, have been regarded by equity judges as breaches of trust, falling peculiarly within the province of equitable correction. Transactions which in courts applying the strict common law would evade scrutiny, will, if tainted by undue influence, be overhauled in equity, and will be set aside if it appear that this influence was used to extort from a dependant an unjust bargain.1 In such cases, where undue influence, based "on the circumstances and conditions of the parties," is exercised,and a bargain thus elicited," the transaction cannot stand, unless the person claiming the benefit of it is able to repel the presumption from contrary evidence, proving it to have been, in point of fact, fair, just, and reasonable."2

Sec 161

Relief of this kind is given whenever positions of authority or trust have been used to ob-tain unrighteous advantages; and under this head may be classed undue influence unconscientiously and prejudicially exercised by parent over child;3 by Courts of equity take peculiar cognizance of such breaches of trust.

Rule applies wherever there are authoritative or fiduciary relations.

277. The same doctrine has been frequently announced in American courts. Taylor v. Taylor, 8 How. 183. In Sears v. Schafer, 2 Seld. 268, it is said : ' In some cases undue influence will be inferred from the nature of the transaction alone; and in all cases a court of equity interposes its benign jurisdiction to set aside instruments executed between parties, in which one party is so situated as to exercise a controlling influence over the will, conduct, and interests of another.' Harvey v. Sullens, 46 Mo. 147, is the case of a will. There the court say : ' Where a person is so sick, worn out, and enfeebled that he is a mere passive instrument in the hands of those who produce the will, it is evident such will ought not to be permitted to stand.' We have a number of Maryland decisions of the same general tenor, viz. : Brogden v. Walker, 2 H.

& J. 285 ; Carberry v. Tannehill, 1 lb. 224; Highberger v. Stiffler, 21 Md. 352 ; Todd v. Grove, 33 lb. 194; and Eakle v. Reynolds, decided April Term, 1880 ; as also Stumpf v. Stumpf, of October Term, 1879, unreported. We are convinced from the proof that the mind of the grantor was greatly impaired, and that its perverted action was fraudulently taken advantage of by means of the deed in question."

1 Story's Eq. 12th ed. sec 238 et seq.; Bisp. Eq. sec 230 et seq.; Aylesford v. Morris, L. R. 8 Ch. 490; O'Rorke v. Bolingbroke, L. R. 2 Ap. Ca. 814.

2 Lord Selborne, Ch., in Aylesford v. Morris, L. R. 8 Ch. 490, adopted in Anson on Contracts, 157.

3 Hoghton v. Hoghton, 15 Beav. 278 ; Baker v. Bradley, 7 De G. M. & G. 597; Wright v. Vanderplank, 8 De G. M. & G. 137 ; Bainbrigge v. Brown, 44 L. T. (N. S.) 705 ; Taylor v. Taylor, 217 an uncle standing in loco parentis over a niece;1 by any member of a family who has acquired an overweening influence over another;2 by a solicitor or counsel over client;3 by a.

8 How. U. S. 183 ; though see supra, sec 157 ; Bergen v. Udell, 31 Barb. 9; Berkmeyer v. Kellerman, 32 Oh. St. 239. As to ratification see remarks of Turner, L. J., in Rhodes v. Bate, cited infra, sec 168.

1 Archer v. Hudson, 7 Beav. 560; Kempson v. Ashbee, L. R. 10 Ch. 15 ; Graham v. Little, 3 Jones' Eq. 152.

2 Harvey v. Mount, 8 Beav. 439; Todd v. Grove, 33 Md. 188 ; Martin v. Martin, 1 Heisk. 644. Lord Chelmsford's ruling, in Tate v. Williamson, L. R. 2 Ch. 61, following that of Wood, V. C. (afterwards Lord Hatherly), S. C. L. R. 1 Eq. 528, illustrates the distinction in the text. The complainant in that case, when a young man of twenty-two, was largely indebted, though holding the half of a freehold estate. He wrote to his great-uncle, who sent a nephew, Williamson, to confer with the complainant. Williamson caused a valuation to be made by a surveyor, according to which the mines under the whole tract were worth £20,000. Without communicating this to the complainant, he purchased the complainant's interest for £7000. The sale was set aside by Wood, V. C, and this was affirmed by Lord Chelmsford, on the ground that there was a relation of confidence in the case which required a disclosure of all the facts. As to the duty of disclosure under such circumstances, see infra, sec 254. 256 a.

3 Infra, sec 426 ; Bispham's Eq. sec 236; Wh. on Agency, sec 574 ; Tyrell v. Bank of London, 10 H. L. Cas. 26 ; Holman v. Loynes, 4 De G. M. & G. 270; Greenfield's Est., 14 Penn. St. 489 ; S. C. 24 Penn. St. 232, and cases cited infra, sec .

426. The utmost good faith must be shown to sustain a sale of property in litigation by client to counsel. Walm-esley v. Booth, 2 Atk. 25; Savery v. King, 5 H. L. C. 627 ; Whitehead v. Kennedy, 69 N. Y. 462; Merritt v. Lambert, 10 Paige, 352; Smith v. Brotherline, 62 Penn. St. 461. That business transactions between client and counsel will be jealously watched, and that counsel cannot purchase client's property without client's full and free consent, see infra, sec 426. Dunn v. Record, 63 Me. 17 ; Lewis v. Hilman, 3 H. of L. C. 607 ; Mott v. Harrington, 12 Vt. 199 ; Mills v. Mills, 26 Conn. 213 ; St. Leger's App., 34 Conn. 450; Hawley v. Cramer, 4 Cow. 717; Berrien v. McLane, 1 Hoff. N. Y. 421; Barry v. Whitney, 3 Sandf. 696; Ford v. Harrington, 16 N. Y. 285 ; Boyd v. Boyd, 66 Penn. St. 283; Roman v. Mali, 42 Md. 513 ; Jennings v. McCon-nell, 17 111. 148; Zeigler v. Hughes, 55 111. 288; Gray v. Emmons, 7 Mich. 533 ; Riddell v. Johnson, 26 Grat. 152 ; Buffalow v. Buflfalow, 2 Dev. & B. Eq. 241.

"It is the duty of the attorney to protect the interests of his clients, and the client is entitled, while the relation exists, to the full benefit of the best exertions of his attorney; therefore, an attorney may not bring his own personal interest in any way into conflict with that which his duty requires him to do, or make a gain for himself in any manner whatever, at the expense of his client in respect to the subject of any transactions connected with or arising out of the relation of attorney and client, beyond the amount of a just and fair professional remunerdirector or promoter of a company over the company;1 by a partner over a partner, all clandestine dealings by one partner to his exclusive benefit being forbidden ;2 by a trustee over cestui que trust;3 by any person using influence over another to whom he occupies confidential relations ;4 by an executor or administrator over the parties whose interests it is his duty ation, to which he is entitled. Kerr on Frauds, page 163. Yet the law does not go so far as to prohibit an attorney from purchasing from his client. That is, he is no*t incapacitated by virtue of his relation as an attorney to purchase. If, however, he purchases a client's property during the continuance of the relation of attorneyship, which is the subject-matter of such relationship, the burden of proof lies on him to show that the transaction has been perfectly fair, and he must be able to show that a just and adequate price has been given." Horton, C. J., Yeaman v. James, Sup. Ct. Kan. 1882.