Opinion
12-26-1888
OSBORNE v. DUNHAM et al.
Leslie Lupton, for defendant Cutter. Garrett Berry, for defendants the Dunhams.
Bill by William A. Osborne against Ichabod P. Dunham and others to foreclose a mortgage. This controversy arose between two defendants, Mrs Dunham and Mr. Cutter, upon a cross-bill tiled by the latter.
Leslie Lupton, for defendant Cutter. Garrett Berry, for defendants the Dunhams.
BIRD, V. C. On a bill to foreclose, this controversy has arisen between two of the defendants,—Cutter on the one hand, and Mrs. Dunham on the other. Cutter sets up by way of cross-bill that Mrs. Dunham was the owner of one of the mortgages mentioned in the bill of complaint; that she assigned it to one Edgar, who afterwards assigned it to one Demarest; that afterwards, he, as solicitor of Mrs. Dunham, filed a bill for the redemption of said mortgage, and that afterwards such proceedings were had that a final decree was rendered in the cause determining the amount due from her to Demarest, which amount, together with costs, was $200.95. She also owed Cutter, $48.05. For these two amounts she gave Cutter her promissory note, and Cutter paid to Demarest the $200.95, who delivered the mortgage to Cutter. At the same time that the promissory note was made and delivered to Cutter, Mrs. Dunham assigned to him all her right, title, and interest in the said mortgage as collateral security for the payment of the said note. More than seven years thereafter, Cutter obtained judgment on said note. Cutter asks for a decree in his favor for the amount due upon said note, and that the premises be sold to pay the same. Mrs. Dunham resists this claim of Cutter on two grounds: (1) That there is nothing due to Cutter; and (2) that she had no right to make the assignment of the mortgage to him, for the reason that she had previously made a complete and unconditional assignment of it to her brother-in-law McGuire, in trust for the benefit of her infant children, of which Cutter had knowledge before the assignment to him. It seems to me that neither of these defenses can prevail. As to the first, while the bond and mortgage were still in the hands of Demarest, with the decree of the court adjudging that he was entitled to hold the same until the sum of $200.95 were paid him, and Mrs. Dunham had no money with which to pay the same, Cutter, at the request of Mrs. Dunham, with his own money, paid the amount clue to Demarest, and procured possession of the bond and mortgage. It was about this time, and while he had such possession, that the assignment was made to him, and the said note given, upon which note judgment was afterwards entered by default. That these statements are true has not been controverted by Mrs. Dunham. The only pretense that nothing is due to Cutter is the disputed allegation that hepromised to redeem the said mortgage at a cost of not more than $40. It will be seen that if he made such an agreement it must have been before any proceedings were begun, or at an early stage thereof, for the case shows that the parties were before a master and before the court on final hearing, and that the taxed costs alone were over $100. These facts, together with common experience, would seem to indicate that as to this particular matter there could not have been the agreement which Mrs. Dunham relies upon. And this view would seem to be strengthened by her act in giving her promissory note, and at the same time making the assignment of said bond and mortgage to secure its payment. I find nothing to justify me in concluding that Cutter took any advantage of his client. So far as appears, her husband was present at these various transactions. The answer to the second objection to Cutter's claim is equally free from difficulty. Give all the force and effect to the assignment to McGuire which Mrs. Dunham claims for it, and still, upon plainest principles, McGuire's rights were subject to the rights of Demarest. McGuire could not obtain possession of the bond and mortgage without satisfying the claims of Demarest. The case shows that Demarest's claims were in every way superior to McGuire's; shows that he gave a consideration, and had the lawful possession, while McGuire gave nothing, and, though he had an assignment, he never had the possession of the thing assigned; and shows that McGuire never has made any claim to the possession of the mortgage. The case also shows that the suit to redeem the mortgage was instituted by Mrs. Dunham, and was carried on in her own name. She claims that soon after the suit was instituted to redeem, Cutter learned of the assignment to McGuire, and that he then advised her not to make known the fact of such an assignment, which she did not do, although it appears to have been a matter of record at that time. I conclude that, after giving the greatest force to the assignment to McGuire, since his rights were subject to those of Demarest, and since the proceedings to redeem were carried on by Mrs. Dunham, the original owner, and sister-in-law of McGuire, and since those proceedings were necessary and proper in order to regain possession and control of the mortgage, and since Cutter, as solicitor, conducted the suit to redeem, and paid the amount at the request of Mrs. Dunham, which was lawfully adjudged to be due, he would be entitled to a lien upon the said mortgage to the extent of his disbursements had no assignment to him ever been made. Under a single circumstance in this case—that is, the fact that McGuire has allowed all these proceedings, both as to the redemption and as to this foreclosure, to be carried on without any appearance or interference on his part—it seems impossible to avoid reaching the foregoing results. I think Mr. Justice REED expressed the law in Braden v. Ward, 42 N. J. Law, 518. He says: "The right of lien for an attorney's costs exists only where he has received money upon the judgment in the cause, or he has arrested it in transitu, or where the defendant has paid the judgment after receiving notice of the attorney's claim." I think the principle here declared is broad enough to sustain the claim of Cutter, independent of any assignment, he having obtained possession of the bond and mortgage in due course of his employment, and at the request of Mrs. Dunham. In Dubois' Appeal, 38 Pa. St. 231, it is said that possession is indispensable to such lien as much as it is to the lien of an ordinary factor or bailee; but, such possession once acquired, the lien is complete. To the same effect is the judgment of the court in Hobson v. Watson, 34 Me. 20. See, also, the valuable and instructive note to Andrews v. Morse, 12 Conn. 444, found in 31 Amer. Dec. 752, 755, in which it is said that this lien is not confined to the particular document or paper the attorney is employed to prepare, but it attaches to all deeds, papers, and documents of the client coming into the attorney's hands in the regular course of business in the transaction for which he is employed, whether for the purpose of copying, abstracting, or perusing. The defendant Cutter is entitled to the amount of principal and interest due uponhis bond and mortgage; and a decree will be advised directing so much of the premises as will be necessary for that purpose to be sold to raise and satisfy the same, with costs.