
    In re VAN RUSCHEN.
    (160 N. W. 1006.)
    (File No. 3917.
    Opinion filed January 20, 1917.)
    1. Attorneys — Disbarment—Fraudulently Procuring Mortgage Release — Procuring Moneys — Procuring Moneys from Administrator Under Power of Attorney — Sufficiency of Evidence.
    Findings of a referee in disbarment proceedings, based in part upon a judgment of conviction for fraudulently, etc., inducing accused’s mortgagee to_ release all of mortgaged property ■ that he had fraudulently secured such release, ibad concerted to his own use money deposited with him for safekeeping hy clients, substituting therefor his personal notes, and that he had fraudulently procured signature of heirs to an agreement for a collection commission, under which he had ■collected moneys from an administrator belonging to them, were sufficient to warrant disbarment; and the evidence supports such findings.
    2. Same — Disbarment—Scope of Inquiry.
    The real and vital issue to he determined in disbarment proceedings, is wlbether accused,- from the whole evidence submitted, is a fit and proper ¡person to he permitted to continue ■in the practice of law. And where the commission of crime is ■involved in such proceeding, the real question is not whether •accused has been guilty of some crime and should he punished therefor, although the fact that he has been convicted, or has been shown guilty of crime, should always he taken into consideration in determining his fitness to continue in practice.
    Proceedings for the 'disbarment oif Hi. Van Ruschen, at-torne)'- at law.
    Judgment of 'disbarment.
    
      C. C. Caldwell, Attorney General, for the State.
    
      Spangler & Haney, and Alan Bogue, Ir., for Defendant.
    (1) To' point one of the opinion, the State cited: Sec. 704, Political 'Code; In re Kirby, 10 S. D. 322; 2 R. C. D. 1089; In re Egan, 154 N. W. 521; 'Secs. 686, 688, 692 and 697, Political Code; In re Egan, 157 N. W. 210; In re Egan, 22 S. D. 335; 2 R. G. E. 1095.
    
      Defendant submitted, 'regarding the Hofer charge, that: It is clearly evident that they persistently refused to accept Mrs. Hofer’s share of the proceeds of the partition sale because they believed they were entitled -to the entire quarter and would prejudice their claim if they accepted anything less. True, Van 'Ruscben might have extinguished his obligation by a tender and deposit of the amount due the Hofers,_ but his failure to¡ do. so did not 'constitute a conversion or embezzlement of the funds. If Mrs. Hofer desired payment she was -at liberty to s-ue to recover the amount due, but it is evident that neither she nor her husband was willing to - take this money for fear it would prejudice their claim to the entire quarter.
   MeOOY, J.

In this proceeding in disbarment the accused attorney, among other things, was charged with having fraudulently-and criminally, by false representations, induced one Tetta Lammers, a mortgagee, toi whom accused, as mortgagor, owed money secured by a real estate mortgage upon 39 town lots, to execute a certain release upon the whole of said 39 lots, when in truth and in fact she intended to execute and thought she was executing a release upon only three of said lots. It also appears that in the circuit court of Turner county accused was informed against by the state’s attorney for having feloniously and willfully secured, by false pretenses and representations, the signature of said Tetta Lammers to said release of 39 lots; and that upon the trial of said action before a jury the said- accused’ was found guilty as charged in said information-; and that an appeal was taken to the Supreme Court from said judgment of conviction, and which: appeal resulted in the affirmance of said judgment. State v. Van Ruschen, 38 S. D. 187, 160 N. W. 811. Based upon said judgment of conviction the referee, to whom this cause was referred for findings of fact and conclusions of law, has filed report that the conduct of the accused in relation to the obtaining of said relea-se from Mrs. Lammers was unlawful, wrongful, and fraudulent.

The accused was -also charged in this proceeding' with wrongfully and fraudulently having procured from Josua Hofer and wife tire sum of $1,600 for which he has failed to account to ’them. From the finding's1 -of the referee it appears that Mrs. Hofer claimed some interest in the estate of her deceased father, then being probated', and that the accused' -was employed to represent ‘her interest and was paid for his -services. Upon the final distribution of said estate Mrs. Hofer became entitled to receive $1,600 then in the hands of the administrator. Mrs. Hofer was- dissatisfied with said amount, claiming that she was entitled to a portion of her father’s real’ estate. The accused thereafter appeared at the country residence of the Ho-fers and procured 'their signatures to a contract authorizing- him to- work for them in the -interest of securing- such inheritance, for which they agreed to pay him io per cent, o-f whatever amount he might collect for them, and that he should have one year in which to transact said business and make settlement thereof. The accused used this contract as his authority to- go to the administrator and collect the $1,600 theretofore adjudged to belong to Mrs. Hofer, and which sum he- has evei- since retained. No other services of -any kind were performed, or attempted to be performed, by 'him, and there was- none other that he could have performed with reference to the collection of the $1,600, as he then well knew. This transaction with- the H'ofers the referee found to be wrongful and unprofessional. The accused now contends that the evidence was insufficient to sustain the findings and conclusions on the Hofer charge. We are of the view that such finding's and conclusions are amply sustained by the evidence. There is evidence, fending to show that the Iiofers, being Germans and not understanding the English language, did not know the contents or purport of said contract although the same was written in the German language, and did not know that sai'di contract might be used -by the accused to- obtain possession of the $1,600 then in the hands of the administrator, but thought that said contract related' to the recovery of a land inheritance andi the collection of rents -and profits' for the use thereof, and that the Hofers relied in executing- said contract upon the representations of accused that the contract related to the securing of the claimed land inheritance of Mrs. Hofer.

The accused -is also charged with having- procured one Griller to deposit some $800 in cash with him for safe-keeping in an envelope to> be deposited' in a bank, and that the accused in some manner abstracted s'aid cash from said envelope and substituted in- place thereof his own personal notes. There were other charges in relation toi other transactions. These O'bhen charges, including the Gniller charge, -were found' 'by the referee to be not unprofessional, fraudulent, or dishonest. We have carefully examined the evidence relating to these charges found to 'be not unprofessional, and while we are of the view that the evidence in relation thereto is conflicting, still we are also of the view that these transactions tend to show a very unusual course of professional conduct of the sort that is sometimes termed “sharp practice” that can neither be sanctioned nor approved by this court. We must keep in mind that the real and vital issue to -be determined in disbarment proceedings is, Is the accused, from the whole evidence submitted, a' fit and proper person to be permitted to continue in the practice of law? The real question is not whether the accused has been guilty of some crime or other, and should be punished therefor, although the fact that he has been convicted, or ha© been shown to be guilty of a crime, should always be taken into, consideration in determining his fitness to continue in practice. In re Egan, 36 S. D. 228, 154 N. W. 521.

Based upon the findings and conclusions of the referee, we are of the view that the accused should be permanently dis'bared from practicing law in this state, and that his' name be stricken from the roll of attorneys 'authorized' to practice law by this court; and judgment may be so entered, with costs1.

POLLEY, J., took no part in this decision.  