Summary
In Dolan, we held that the lienor's "failure to tender the amount due has not deprived him of his right to redeem the property.
Summary of this case from Johnson v. SmithOpinion
No. 77-776
Decided May 4, 1978. Opinion modified and as modified petition for rehearing denied June 1, 1978.
In action concerning the recognition of a right of redemption based on an attorney's lien, trial court upheld public trustee's actions that resulted in a deed being issued to holder of the deed of trust, and plaintiffs appealed.
Affirmed in Part, Reversed in Part.
1. ATTORNEY AND CLIENT — Judgment Obtained — Nullifying Trust Deed — Attorney's Lien — Attached to Property — Unaffected — Client's Failure to Redeem. Where attorney obtained judgment on behalf of his client nullifying a deed of trust against certain property of client that had been sold on a foreclosure, the attorney was entitled to an attorney's lien on that property at the time the judgment was obtained, and the attorney's lien rights were unaffected by the fact that the client did not redeem the property.
2. Attorney's Lien — Immediately Attaches — Obtaining of Judgment — Between Parties — Notice Given — Enforceable — Third Party. An attorney's statutory charging lien attaches immediately upon the obtainment of a judgment by the attorney for the benefit of his client; as between the attorney and his client, nothing more need be done to cause the lien to be enforceable, and the lien becomes enforceable against third parties when notice is provided.
3. MORTGAGES — Useless Tender — Not Required — Public Trustee — Indicated — — No Redemptive Rights — Failure to Make Tender — Not Deprived — Right of Redemption. The law does not require a useless tender; thus, where public trustee indicated that attorney claiming statutory charging lien on certain foreclosed property had no redemptive rights, a tender on his part would have served no useful purpose and his failure to tender the amount due did not deprive him of the right to redeem the property.
Appeal from the District Court of Jefferson County, Honorable Winston W. Wolvington, Judge.
Myles J. Dolan, Pro Se, and as attorney for plaintiff-appellee Loretta M. Dolan.
Patrick R. Mahan, County Attorney, Richard F. Mutzebaugh, Assistant County Attorney, for defendant-appellee Nancy Flett, Public Trustee.
Peter A. Robinson, for defendant-appellee General American Life Insurance Company.
This action primarily concerns the recognition of a right of redemption based on an attorney's lien. From an adverse judgment, plaintiffs appeal. We affirm in part and reverse in part.
Each plaintiff claimed a separate right of redemption originating from legal services provided Frank Cavanaugh by his attorney, plaintiff Myles Dolan. On January 18, 1977, Cavanaugh's agricultural property was sold at a foreclosure sale to the holder of the first deed of trust, General American Life Insurance Co. Subsequently, Myles obtained a judgment for Cavanaugh nullifying an unrelated promissory note and deed of trust on that property. On July 15, 1977, he filed with the court a notice of attorney's lien, which had been approved in amount by Cananaugh, and recorded said notice with the county clerk and recorder. Dolan duly filed with the public trustee a notice of intent to redeem the property. Also, on that day, Cavanaugh executed and delivered a note and deed of trust on the same property to Myles for legal services involving other litigation. Myles assigned this note and deed of trust to his wife, plaintiff Loretta Dolan, recorded the documents, and filed with the public trustee her notice of intent to redeem.
On July 20, 1977, plaintiffs were assigned the following redemption periods: Myles, from August 3, 1977, through August 8; Loretta, from August 9, through August 15. On July 26, plaintiffs were notified that the public trustee refused to recognize Myles' attorney's lien for redemption purposes, and consequently, Loretta's redemption period was moved up and ran from August 3 through August 8.
On August 8, plaintiffs instituted the present action against Cavanaugh, the public trustee, and General American. Cavanaugh admitted his liability and disclaimed any interest in the suit. Initially, a temporary restraining order stayed the issuance of the trustee's deed. However, on August 17, the trial court denied plaintiffs' request for a preliminary injunction and the public trustee issued its deed to General American.
I.
Myles contends that the court erred in ruling that his attorney's lien did not attach to the land in question. We agree.
[1] Myles has a statutory charging lien on "any judgment" he obtained on Cavanaugh's behalf. Section 12-5-119, C.R.S. 1973. In Filmore v. Wells, 10 Colo. 228, 15 P. 334, the court construed the phrase "any judgment" to mean the "fruits of [any] judgment," including the realty in which a client's "interest . . . is preserved." Here, the nullification of the deed of trust eliminated a sizeable encumbrance on Cavanaugh's property. This, in turn, preserved for Cavanaugh the value of the subject property in excess of what was lawfully due General American as holder of the first deed of trust. See § 38-39-103(5), C.R.S. 1973. The benefit of the judgment to Cavanaugh for purposes of the attorney's lien is not lessened by the fact that Cavanaugh did not redeem his property. Thus, Myles' lien for services attached to Cavanaugh's property at the time judgment was obtained. Filmore, supra; see also People ex rel. MacFarlane v. Harthun, 195 Colo. 38, 581 P.2d 716
The public trustee contends that because Myles did not reduce his lien to judgment against Cavanaugh, that lien is unperfected, and cannot support a right to redemption under § 38-39-103, C.R.S. 1973. We agree with plaintiffs' contention, however, that the concept of "lienor" embodied in § 38-39-103, C.R.S. 1973, is not so limited.
[2] The statutory charging lien, § 12-5-119, C.R.S. 1973, attaches immediately upon the obtainment of a judgment. As between attorney and client, nothing more need be done to cause the lien to be enforceable, and the lien becomes enforceable against third parties when notice is provided. Harthun, supra. Here notice was given when the lien notice was filed with the court. Because Myles filed a notice of lien and a notice of intent to redeem, he was entitled to a right of redemption.
[3] Defendants contend plaintiffs' redemption rights expired because they failed to tender the amount necessary to redeem the property. Defendants' contention has merit regarding the claim of Loretta, but not regarding the claim of Myles. Loretta's right to redeem was never questioned; however, she failed to make any tender, and, consequently, lost her right to redeem the property. Myles' failure to tender the amount due has not deprived him of his right to redeem the property. The law does not require a useless tender, Gerbaz v. Hulsey, 132 Colo. 359, 288 P.2d 357; Spaulding v. Porter, 94 Colo. 496, 31 P.2d 711, and a tender on his part would have served no purpose because the public trustee had already indicated that Myles had no redemptive rights.
The judgment terminating Loretta Dolan's right of redemption is affirmed. The judgment as to Myles Dolan's claim is reversed, and the cause is remanded to the trial court with directions to set aside the public trustee's deed and allow Myles Dolan five days thereafter within which to redeem the property.
The judgment as to Myles Dolan's claim is reversed and the cause is remanded to the trial court with directions to set aside the public trustee's deed, to conduct such proceedings as are necessary to determine the redemption price and to allow Myles Dolan five days after the date of the determination of the redemptive price within which to redeem the property. In determining the redemption price the court shall make allowance to General American for any and all monies expended during the time of its possession of the property which were reasonable and necessary for taxes, insurance, maintenance and repairs and any other costs or expenses allowable by law. General American shall account for all income and receipts derived from the property and the net profit as determined by the court shall be deducted from the redemption price. It is further directed that interest on the redemption price shall be suspended from the date of the original issuance of the public trustee's deed to the date of the determination by the trial court of the new redemption price.
JUDGE BERMAN and JUDGE VAN CISE concur.