Nevertheless, the language purporting to express such an understanding must itself be clear. See Wilson v. Seeber, 72 N.J. Eq. 523, 66 A. 909 (Ch. 1907). Reflecting the notion that the primary basis for the imposition of an equitable lien is contractual, such a lien may arise through an assignment.
* * *" He cited in support of this conclusion: Wylie v. Coxe, 15 How. 415, 14 L. Ed. 753; Ingersoll v. Coram, 211 U.S. 335, 365-368, 29 S. Ct. 92, 53 L. Ed. 208; Burn v. Carvalho, 4 My. Cr. 690, 702, 703; Rodick v. Gandell, 1 DeG., M. G. 763, 777, 778; and Harwood v. LaGrange, 137 N.Y. 538, 540, 32 N.E. 1000, all of which indicate that an agreement to pay out of an identifiable fund when it shall come into being gives rise to a lien. To the New York decision may be added the recent case of Archibald v. Panagoulopoulos, 233 N.Y. 478, 135 N.E. 857; Wilson v. Seeber, 72 N.J. Eq. 523, 66 A. 909; Geddes v. Reeves Coal Dock Co. (C.C.A.) 20 F.2d 48, 54 A.L.R. 282; U.S. Fidelity Guaranty Co. v. Bristow (D.C.) 4 F.2d 810; and American Surety Co. v. Finletter (C.C.A.) 274 F. 152, are in accord.
The public adjuster cited analogous case law recognizing an attorney's equitable lien on funds generated in litigation. See Wilson v. Seeber, 72 N.J.Eq. 523 (Chancery 1907); Klacik v. Kovacs, 111 N.J.Super. 307 (App.Div. 1970), cert. den. 57 N.J. 237 (1970). The United States had claims to the proceeds for withholding and excise taxes.
Their contract provides that they "are to receive for their services five per cent. of the net estate after the final accounting has been rendered and at the time of distribution." Compare the terms used in Wilson v. Seeber,72 N.J. Eq. 523 (at p. 530), where the client agreed "to pay said Wilson [the solicitor] one-third part of whatever money shall be paid to or received by" the client. Vice-Chancellor Pitney held that an equitable lien or assignment was created, enforceable in Chancery out of the fund which was under its control.
Lanigan's Adm'r v. Bradley Currier Co.,Ltd., 50 N.J. Eq. 201; American Pin Co. v. Wright, 60 N.J. Eq. 147;Myers v. Forest Hill Gardens Co., 103 N.J. Eq. 1;affirmed, 105 N.J. Eq. 584. However, a contract by a client to pay his attorney compensation out of the fund to be realized by his efforts, raises an equitable lien in favor of the attorney as against the client, which fastens to the fund as soon as it takes form. Wilson v. Seeber, 72 N.J. Eq. 523, dealt with a contract between attorney and client, whereby the former agreed to pay the latter for his services one-third of whatever money should be received on his claim. Vice-Chancellor Pitney, after a careful review of the authorities, found that the attorney had an equitable lien. His decision is the more impressive because he also penned the opinions in Lanigan'sAdm'r v. Bradley Currier Co., Ltd., supra, and American PinCo. v. Wright, supra.
Rutherford Nat'l Bank v. H.R. Bogle Co., 114 N.J. Eq. 571, 574, 169 A. 180 (Ch. 1933). See In re Loring, 62 N.J. 336, 340-41, 301 A.2d 721 (1973) (assertion of attorney of an equitable lien for a fee claim out of sale proceeds of house); Cohen v. Estate of Sheridan, 218 N.J. Super. 565, 570, 528 A.2d 101 (Ch.Div. 1987) (real estate brokers found to have equitable lien for their commissions on proceeds of sale due vendor at closing); Wilson v. Seeber, 72 N.J. Eq. 523, 535-36, 66 A. 909 (Ch. 1907) (an agreement by an attorney whereby he was to receive one-third of the proceeds of shares of stock to be recovered in an action to undo a shares transaction sufficient to establish intention of the parties for the attorney to receive one-third of the proceeds of the action and thus to form a basis for an equitable lien upon those proceeds). Thus, "[w]here one promises to pay for services rendered out of a fund created in whole or in part by the efforts of the promisee, a lien in favor of the promisee will attach to the fund when it comes into existence."
However, a contract by a client to pay his attorney compensation out of the fund to be realized by his efforts raises an equitable lien in favor of the attorney as against the client, which fastens to the fund as soon as it takes form. Wilson v. Seeber, 72 N.J.Eq. 523, 66 A. 909, dealt with a contract between attorney and client, whereby the former agreed to pay the latter for his services one-third of whatever money should be received on his claim. Vice Chancellor Pitney, after a careful review of the authorities, found that the attorney had an equitable lien.