Opinion
June 27, 1906.
A.M. Mills, for the appellant.
Edgar T. Brackett and Benjamin P. Wheat, for the respondent.
An agreement by a wife to compensate her attorney for his services in an action by her against her husband for a separation by giving her attorney a certain percentage of what she may receive for her support and maintenance, is void as against public policy. ( Van Vleck v. Van Vleck, 21 App. Div. 272.) The agreement between Mrs. Decker and her attorney, it is true, related partly to matters independent of the separation action. But the money on which the lien has been declared related indiscriminately to alimony, support and maintenance and to all other matters or differences, and it is not possible to divide the amount in such a way as to make any particular portion thereof pertain exclusively to matters which are independent of the separation action and the wife's support.
It is established in this proceeding, however, that the reasonable value of the services and disbursements in question was the same as the amount specified in the agreement between the attorney and his client. Hence it is necessary to consider whether the lien declared in this case can be sustained independently of the agreement fixing the price and on the assumption that the services were in fact reasonably worth the amount agreed to be paid therefor.
It probably will not be questioned that an attorney's lien cannot exist concerning property to which the client has no title or claim. Unless Mrs. Decker has become entitled to the money deposited by her husband with his attorneys, the respondent can have no lien thereon, because it is self-evident that an attorney cannot acquire a lien on property to which his client was not entitled.
In theory of law the appellant has never parted with the possession or control of the money which he delivered to his attorneys. The agreement providing for the payment of the $3,000 only contemplated such payment to Mrs. Decker in case judgment was entered against the appellant in the separation action. The respondent urges that such payment was not conditional on the entry of judgment. That, however, was the meaning of the parties. When that agreement was made a reconciliation was not in contemplation, and it was expected that the status of the parties would be fixed by a legal separation. The entry of judgment would be perhaps merely formal, but a legal separation in fact was contemplated. And the petition herein of the respondent expressly states that it was made a condition of said settlement between Mrs. Decker and her husband that said action for a separation "should be continued to judgment," and also that the money was deposited by the appellant to his attorneys to be paid to Mrs. Decker "upon the entry of judgment in said action." When, therefore, the relations between the parties changed and their legal separation was no longer desired or in fact obtainable because of their cohabitation, the agreement which had been made between them on the theory of a legal separation was rendered nugatory and it became no longer desirable or even possible for such agreement to be consummated. The wife thereby became entitled to her support and maintenance, not as contemplated by said agreement, but as a wife usually receives support from her husband and in the manner which is favored and encouraged by the law. She had thereafter no claim or right to the $3,000, and not being entitled to it herself her attorney could have no lien thereon.
But it is urged by the respondent that his client colluded and conspired with her husband to defraud her attorney out of his claim for services. The order appealed from recites "that said Nellie B. Decker and Fred S. Decker have since the commencement of said action cohabited together as husband and wife, and that she has returned to the bed and board of said Fred S. Decker." It is quite probable that Mrs. Decker and her husband have been guilty of bad faith and duplicity towards the respondent. But it is hardly supposable that she has cohabited with her husband and returned to his bed and board for the purpose of defrauding the respondent. The resumption by her of her marital relations with her husband is to be commended and must be sustained by the court, even though the effect thereof be to place her attorney at a disadvantage in the collection of his claim for services. It appears conclusively that she has condoned her husband for his acts of cruelty, and by such condonation she no longer became entitled to a judgment for separation, nor would the court grant such judgment, even though both parties so requested. Conceding that Mrs. Decker colluded with her husband to defraud her attorney, nevertheless such collusion was an outgrowth of her reconciliation with her husband, and it logically and necessarily follows from such reconciliation that she never acquired any claim or title to the $3,000, and hence the lien of her attorney could no more attach thereto than it could to any other property of her husband. Whatever the rights of the attorney may be, it is clear that he has no lien on the money in question.
The services of the respondent were performed in good faith and were rendered, as he believed, for the best interests of his client. She acted most unfairly towards him in not disclosing to him her true relations with her husband. But for the reasons heretofore stated the order declaring the lien herein cannot be sustained.
The order must be reversed and the motion denied, but under the circumstances no costs are awarded.
All concurred.
Order reversed, without costs, and motion denied, without costs.