Smalley v. Clark

The opinion of the court was delivered by Bennett, J. It seems, that Phelps Smith, one of the defendants in this bill, claimed title to certain real estate, situate in St. Albans, and that his title to it became embarrassed. The plaintiffs were employed by Smith to institute proceedings to remove the cloud, that was resting upon his title, and at the January Term of the supreme court, 1845, a decree in chancery was obtained in behalf of Smith against one Blaisdell, who was in possession, claiming title, that, upon Smith’s paying to Blaisdell a given sum of money, on or before a given day, he (Blaisdell) should give up the possession to Smith,'and release to him all right and title, which Blaisdell claimed to the premises. The money was paid within the time specified by the court, and the release executed by Blaisdell to Smith, and thereupon Smith conveyed to the defendants, Maeck and Clark. The object of this bill is, to obtain a decree for the payment of the plaintiffs’ account against Smith for services as solicitors and moneys paid out in the chancery suit, and also in two other suits particularly set forth in the orators’ bill, and, in default thereof, that the defendants be decreed to release and convey to the orators all their title to the premises. The bill is predicated upon the idea, that the orators had what is called an attorney’s lien upon the land for the payment of their account, and that the land, from the facts in this case, is chargeable with the lien in the hands of Smith’s grantees. The first and only question, which we shall have occasion to examine, is, have the orators any specific lien upon this land, as against Smith, which a court of equity can protect and enforce; and if not, this court need go no farther. It is well understood, that attorneys have a lien upon judgments recovered by their clients for their costs. If the money come to their hands, they may retain it for the amount of their lien, and may have an order to restrain their clients from receiving it, until their bills shall have been paid, and may, by giving notice to the judg [604] ment debtor, that they rely upon their lien, protect themselves, in their lien on the judgment against the debtor, from a payment to the creditor; and in the case of Heartt v. Chipman, 2 Aik. 162, it was held, that the attorney might maintain an action for money had and received, to the extent of his lien, against the assignee of the judgment creditor, to whom the money had been paid. In the present case, there is no pretence, that the orators had any lien upon the land, while the possession and ostensible title was in Blaisdell, and he is specifically decreed to convey his whole title to Smith. This is done in obedience to the decree of the court. Neither Smith is in the wrong, in taking the title, nor Blaisdell, in conferring it upon him. It may, then, well be inquired, whether, in this situation, an attorney’s lien can attach to these lands, so as to give the orators, in equity, a paramount control over them ? This is the first instance, that I am aware of, in which it has been attempted to extend the attorney’s lien, as in this case. In England it is a familiar doctrine, that, in equity, the vendor of real estate has a lien upon the land for the unpaid purchase money; but this is upon the ground of a constructive trust, — the vendee holding the legal estate as the trustee of the vendor to the extent of the lien; and in the case of Manly et al. v. Slason et al., 21 Vt. 271, this English chancery doctrine was applied in this state, though after considerable hesitation. In the case of Russell v. Russell, 1 Brown’s Ch. C. 269, Lord Thurlow introduced the doctrine of equitable mortgages by means of the deposit of title deeds ; and though the decision in that case has been since followed in England, yet it has been universally regretted, as being at variance with the statute of frauds, and as leading to discussions upon the truth and probability of evidence, which it was the object of that statute to exclude. The doctrine, no doubt, is founded upon the idea, that a mere deposit of the title deeds furnished evidence of an agreement to make a mortgage. I am not aware, that our courts have ever been called upon to introduce the English chancery doctrine of equitable mortgages ; and it may well be questioned, whether they will do it, if called upon. But this doctrine, being founded, if it has any foundation, upon a supposed agreement to make a mortgage, would have but little application to the question now before us. The only case, that I [605] am aware of, which, materially countenances the ground assumed in this bill, is the case of Barnesley v. Powell, Ambl. 102. That case came up in 1750, by the way of a petition by the solicitor of Barnesiey, (a lunatic,) setting forth, that he had expended large sums of money in prosecuting suits in chancery and at law in behalf of the lunatic; and the object of the petition was, that the solicitor might be allowed to enter up judgment against the lunatic, in order that he might have a lien upon the real estate of the lunatic. This is refused by the chancellor, upon the ground, that no action will lie against the lunatic, but that it must be against the committee of the lunatic, who employed the solicitor. The chancellor says, the committee has a lien upon the lunatic’s estate; and being willing, as he says, to assist the solicitor what he can, he will declare the solicitor stands in the place of the committee, and has a lien upon the lunatic’s estate. This case is reported with a qucere, whether the committee had such a lien; and the counsel for the solicitor doubted of it. This case, then, does not establish the point, that the solicitor had a lien, except by the way of substitution. The control of the person and estate of a lunatic falls into chancery, and the chancellor commits the custody of the person and estate of a lunatic to a committee, who is to render his account, and may be required to give bonds; and I think this is usual. The committee would doubtless be allowed, in his account, to retain in his hands assets of the lunatic sufficient to balance his account, and in this way have an indirect lien on the estate; and probably, as the lunatic is incapable of making any contract with the committee, or the committee with the lunatic, and his whole property is within the control of the court of chancery,it might with propriety be held, that the committee should have a lien upon the lunatic’s estate. But if so, we think this will not sustain the general proposition of the orators. It is true, that Lord Hardwick, in this case, observes, “ that if a solicitor prosecutes to a decree, he has a lien upon the estate recovered, in the hands of the person recovering, for his bills. No such point was before the chancellor for adjudication ; and in the case then at bar the chancellor having held, that the solicitor had no right of action against the lunatic, we do not well see, how he could have a lien against the lunatic’s estate. [606] If such a lien, as is contended for in this case, existed in England, it is somewhat remarkable, that numerous adjudged cases are not to be found, in which it has been recognized and enforced. I am not aware of any such case ; and none has been cited on the argument; and the absence of such cases, especially as there would have been frequent occasions for enforcing the lien, if it existed, furnishes a strong argument, that no such lien does exist. But suppose solicitors, as was said by Lord Hardwick in Ex parte Price, 2 Ves. sen. 407, havegn equity allowed them, to be entitled to a satisfaction out of the fund, for their expenses in the case of a lunatic, whether in the way of a suit, or for his costs in taking out a commission of lunacy, the principles claimed by the orators would by no means follow therefrom. We think, then, to hold that the attorney’s lien attached to these premises, when conveyed by Blaisdell to Smith, would be introductory of a new principle, and an extension of the doctrine of the attorney’s lien beyond any adjudged case, and would, in effect, be to create an equitable mortgage, which would be exposed to all the objections, that have been made to the doctrine of equitable mortgages in England, and even more, under our registry system, without having the same plausible ground to stand upon, that is, the presumed agreement to execute a legal mortgage. The result, then, is, the decree of the chancellor, dismissing the bill, should be affirmed, with additional costs in this court. Let the cause be remitted to the court of chancery, with a mandate for an affirmance of their decree, with additional costs. Royce, Ch. J., did not sit in this case, being related to one of the parties.