Opinion
4 Div. 858.
November 11, 1920.
Appeal from Circuit Court, Coffee County; A. B. Foster, Judge.
W. W. Sanders, of Elba, and H. L. Martin, of Ozark, for appellant.
The original brief filed by counsel, if one was filed, is not in the record, and in their reply brief counsel discuss the facts, but cite no authority.
J. A. Carnley, of Elba, Simmons Yarbrough, of Enterprise, and Sollie Sollie, of Ozark, for appellee.
Complainants did not make out their case with that clear and satisfactory averment of errors that is required. 62 Ala. 133; 62 Ala. 584; 166 Ala. 360, 52 So. 323.
The appellee, W. S. Huey, purchased of W. P. McSwain business property in the town of Enterprise, then occupied by appellants as tenants of McSwain, and upon full payment of the purchase money Huey received a warranty deed to the premises from McSwain. The appellants, through the original and amended bill, seek to impress this property with a trust to their benefit, and, in consequence, the divestiture of title out of Huey and their investment therewith upon performing the acts of equity which the bill offers to do.
The basis of appellants' assertion of right to this relief results, it is stated by them, from the breach by Huey, an attorney at law, of duties imposed upon him by the relation of attorney and client between him and appellants in respect of appellants' then already entered upon arrangements and negotiations for the purchase by appellants of this property; the attorney, when so advised of appellants' purposes and when engaged by them to investigate the title to the property, failing in his duty to inform appellants of his design to purchase it himself.
The evidence was taken ore tenus by the trial court, the relief prayed being denied upon the ground that the evidential obligation assumed was not, to the requisite degree of certainty, satisfactorily discharged by the appellants, complainants. Where the chancellor hears the witnesses on an issue of fact, his conclusion will not be disturbed on appeal unless it is plainly and palpably contrary to the weight of the evidence. Hackett v. Cash, 196 Ala. 403, 72 So. 52; Andrews v. Grey, 199 Ala. 152, 74 So. 62, among many others.
To entitle a complainant to the relief here sought the evidence conducing to a conclusion favorable thereto must establish the essential elements of that right clearly and satisfactorily, removing reasonable doubt in the premises. Lehman v. Lewis, 62 Ala. 129, 133; Holt v. Johnson, 166 Ala. 358, 360, 361, 52 So. 323, among others.
A careful consideration of the entire record does not justify this court in disturbing the conclusion prevailing below, particularly since there is, to say the least of it, the gravest doubt whether the relation of attorney and client ever existed between Huey and appellants with respect to the purchase of this property by appellants, or whether such relation with respect to this property was ever the subject of conference or negotiation between Huey and appellants, before Huey instituted, or before he completed, his purchase of the property. And this conclusion would prevail whether the affidavits, taken by both parties and referred to on the hearing for final decree, were given or denied consideration. In this state of uncertainty upon a vital feature of appellants' claim to the relief sought, the trial court correctly denied relief.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.