Page:North Dakota Reports (vol. 2).pdf/105

 attorney for the defendants in the case of Yerkes v. Hadley, from its inception, in 1885, until its final termination, in March, 1889; but it is clearly alleged that on the 8th day of April, 1887, the relation of attorney and client theretofore existing between this defendant and the Hadleys ceased and terminated by mutual consent, and that after said date this defendant appeared in and defended said case in his own interest and behalf, using the name and title of the original action, under 85 of the Code of Civil Procedure. It is clear that, if defendant ceased on the 8th of April, 1887, to in any manner represent the Hadleys as their attorney, then he had a right to take an assignment of the tar certificate on April 20, 1887, and to take a deed thereon when the certificate matured, and the title so received could be pleaded in defense to this action. Respondent does not question that proposition, but insists that the answer does not state sufficient facts to show this to be true, because, to enable defendant to continue to use the names of the Hadleys in his own behalf under the statute alleged, he must have purchased the interest of the Hadleys in the subject-matter of the litigation, and that no such purchase is alleged; and, further, that if any such purchase was made, it was made when the relation of attorney and client existed, and there are no allegations to overcome the presumption of law that such purchase was fraudulent and void. It may be conceded that, in order to establish the allegation in the answer, the defendant would be obliged to prove a purchase by himself of the interest of the Hadleys in the subject-matter of the litigation, and that, if such purchase was made while the relation of attorney and client existed, the further burden would be thrown upon him to establish the perfect fairness, adequacy, and equity of the transaction. But this evidence would be necessary simply to establish the ultimate fact alleged, to-wit, that after April 8, 1887, the case of Yerkes v. Hadley was defended solely in the interest of this defendant, and that the relation of attorney and client had ceased to exist. Whether or not such proof could be introduced under the answer as it stands is not before us. But it is clear that the defect in this answer, if any, is not that it does not state a defense, but that it states a defense im-