Arthur v. Sylvester

Mr. Justice Trunkey

delivered the opinion of the court, March 3, 1884.

Upon the admitted facts: “1. That defendants were real estate brokers for plaintiffs ; 2. That a sum was due them for cash expended as brokers in attempts to sell property; 3. That defendants had possession of deed and plan in suit, and refused to deliver them to plaintiffs without payment of claim; ” two points of law were reserved: “1. Whether defendants had alien on this deed and plan for their charges; 2. Whether the defendants have a right in this action to defalk from plaintiffs’ damages the amount of their charges.”

No evidence was adduced that by custom or usage a real estate broker is entitled to a lien, for his services or expenses in attempts to sell the property, on the title papers in'his possession ; nor has the able counsel for defendants cited a precedent where such claim of lien was sustained. The claim appears novel. This is not the case of an attorney-at-law entrusted with papers by his client, and it would be a mere dictum to say that an attorney may have a lien on such papers for fees in business to which the papers had no relation. Nor are the defendants conveyancers, as this case comes; but if they were, it does not appear that they did any thing upon the deed or plan. A certificated conveyancer is not entitled to a lien upon deeds delivered to him, and with and in respect to which he has done business, the business not having been done upon the deeds or their value thereby increased: Steadman v. Hockley, 15 M. & W., 552.

The defendants contend that the position of a real estate broker or conveyancer in regard to papers placed in then-hands for professional service by a client, is precisely the same as that of an attorney or solicitor, or other bailee who expends time and money upon the property of the bailor. This may be conceded if meant to apply only to cases of particular lien where the claim is for labor bestowed or money expended on the papers so placed. By the common law, where a man receives from the owner an article for a purpose involving labor or expense upon such article, he may detain it until he is paid for his labor or expenses. How far the right of lien' extends in favor of an attorney in Pennsylvania, perhaps, is unsettled. Attorneys and conveyancers do not seem to stand on the same footing in England; there it has been said that if a deed be delivered to a conveyancer he may have a lien for anything done upon that particular deed; but an attorney *236 may have the benefit of the custom if it were another deed than that on which the operation is performed: Hollis v. Claridge, 4 Taunt., 807. Where a mortgage was delivered to an auctioneer for the purpose of obtaining the money due thereon, and he made several applications to the mortgagor, but received no money, it. was held that he bad no lien on the deed in respect of the charges for making the applications ; and this was applying like principle as applies to conveyancers. “The distinction is, that when the work is to be done on a chattel to improve it, or to increase its value, the lien, attaches, but where it is merely delivered, as in this case, to make a demand upon it, no such right can he supported: ” Sanderson v. Bell, 2 Crompt. & M., 304.

We are of opinion that when a deed and plan are placed in the hands of a real estate broker for the sole purpose that he shall undertake to sell the property, he has no lien on the deed and plan for his charges and expenses in attempts to make the sale.-

This action is founded on an alleged wrongful conversion of the plaintiffs’ property. It would fall if the defendants had a lien on the property, for then they would have right of possession until paid. Their charges cannot be defalked or set off against damages arising from their tort.

Judgment reversed, and judgment is now entered upon the verdict for $48.00 with interest from January 11, 1883.