Smalley v. Clark

A solicitor in chancery, who is employed to commence and prosecute a suit for the purpose of obtaining for his client an unembarrassed title to land to which he has a claim, and who successfully prosecutes the suit to a final decree, whereby the client obtains the land, has no specific lien upon the land, thus obtained, for the payment of his account for services and expenditures in the prosecution of the suit.

Appear from the court of chancery. It appeared, that John Nason, August 20, 1833, being the owner of certain land in St. Albans, subject to the payment of an annual rent to one Jotham Bush, conveyed the same, by deed, to Jonathan M. Blaisdell and received from Blaisdell a bond of defeasance, conditioned for a re-conveyance of the land upon payment of the sum of $375,00, with interest, on or before April 1, 1S34 ; and Nason having neglected to make the payment at the day specified, Blaisdell then took possession of the land, and claimed to own it in his own right, free from all equity of redemption; and on the sixth day of April, 1836, Na-son assigned the bond of defeasance, and at the same time conveyed all his interest in the land, to Phelps Smith. On the twenty first of July, 1820, Nason, by quitclaim deed, had conveyed all his interest in the same land to his sisters Peggy Nason, Sally Morrill, Betsey Ainsworth and Polly Ryan, and at the September Term, 1827, of Franklin county court, he had consented to a judgment against him, in favor of Jotham Bush, in an action of ejectment brought to recover the possession of the same land. In November, 1836, Phelps Smith applied to the orators, who were partners in business as attorneys at law and solicitors in chancery, and employed them to examine the title to said land, and retained them to commence such suits in law and equity, to recover the possession of the land, as might be deemed necessary, and for that purpose delivered to them the bond of defeasance, above mentioned, and the deeds constituting the evidence of his title to the land. The orators having ascertained, that the title to the land, at law, was in Peggy Nason and her sisters, under the conveyance made by John Nason in 1820, Smith, upon the advice of the orators, purchased the title of Peggy Nason and Betsey Ainsworth to the land and received from them a deed thereof, dated November 21,1836, and delivered this deed, also, to the orators, for the purposes above named, and the orators, at the request of Smith, and for his benefit, then commenced an action of ejectment, in the name of Peggy Nason, against Blaisdell, to recover the land,— which suit was entered in Franklin county court, April Term, 1837, and was prosecuted by the orators, as attorneys, until September Term, 1845, of said court, when they suffered a discontinuance, without costs, to be entered, for the alleged reason, that Smith had conveyed his interest in the land to the defendants Clark and Maeck, and they refused to furnish money for the necessary expenses of farther prosecuting the suit. On the fourteenth of February, 1838, Smith purchased of Sally Morrill her title to the land, and received a deed thereof, which he also delivered to the orators. Subsequently the orators, at the request of Smith and for his benefit, commenced a suit in chancery in favor of Smith against Blaisdell, stating the title of Smith to the premises and praying relief, and this suit was entered in court, January Term, 1840, and was prosecuted by the orators, as solicitors, until April Term, 1845, when a decree was made therein by the court of chancery, that Smith, on or before the first day of May, 1S45, pay to the clerk of the court $390,60, being the amount specified in the bond from Blaisdell to Nason, with interest to May 1, 1834, and that Blaisdell, within ten days-thereafter, release and convey to Smith all his title to the premises, with a covenant of warranty against all claims and demands of any person, claiming said premises, or any part thereof, under Blaisdell, and that Blaisdell pay to Smith the costs of the suit in chancery, taxed at $44,51. While the action of ejectment and the suit in chancery, above named, were pending, Blaisdell filed a bill in chancery against Smith and Peggy Nason, touching the matters in litigation in those suits, and the orators, upon the employment of Smith, defended said suit, and procured a final decree, that the same be dismissed. The orators have retained the possession of the bond of defeasance and the deeds and documentary evidence of the title of Smith to the land from the time the same were delivered to them by Smith, for the purposes above named. On the fourth day of October, 1841, Smith mortgaged this land, with other premises, to one Austin, — who had knowledge of the pendency of the suits above named, — and this mortgage, on the first day of July, 1844, was purchased of Austin by the defendants Clark and Maeck, for valuable consideration, — they then having knowledge of the pendency of the suits above named; — and Clark and Maeck, on the twenty eighth day of April, 1845, paid to the clerk of the court of chancery $390,60, in pursuance of the decree above mentioned, and Blaisdell, on the same day executed a deed of said premises to Smith, and Smith, on the same day, conveyed all his right and title to said premises, by an absolute deed of conveyance, to Clark and Maeck; and Clark and Maeck took possession of the premises, and subsequently bargained a portion thereof to the defendant Stevens, who entered into possession, but had received no deed and made no payment on account of his purchase. Smith had become insolvent, and there remained due to the orators, for their services and disbursements in the several suits above named, about the sum of $626,00. And the orators insisted, that they had a specific lien upon said land, for the payment of the amount so due to them, and prayed, that the defendants might be decreed to pay to the orators the amount so due to them, or be decreed to release the land to the orators, upon being repaid the amount paid by them to the clerk of the court of chancery, in pursuance of the decree above mentioned, — which sum the orators offered by their bill to pay to the defendants. The court of chancery dismissed the bill; from which decree the orators appealed. It is well established, that attorneys and solicitors have a general lien upon all the papers and documents of their clients in their possession, not only for their costs and charges in the particular suit, for the prosecution of which the papers were delivered to them, but for their costs and charges for other professional business; and it is submitted, that a solicitor has a lien, for his costs and charges, on the judgment, or estate, recovered by his diligence, as well as upon the mere documentary evidence of title. Jleartt v. Chipman, 2 Aik. 162. Walker v. Sargearit, 14 Vt. 247. Hutchinson et al. v. Howard, 15 Vt. 544. Barnesley v. Powell, Ambl. 102. Turvin v. Gibson, 3 Atk. 720. 1 Smith’s Ch. Pr. 692,695. 1 Newl. Ch. Pr. 427. 2 Madd. Ch. 571. If the orators have a lien, a court of equity will enforce it. 2 Story’s Eq. 571, sec. 1215 et seq. This lien cannot be defeated by the bankruptcy, or assignment, of the client. Heartt v. Chipman and Hutchinson et al. v. Howard, above cited. Martin v. Hawks, 15 Johns. 405. Smith never had any legal title to the land in question; consequently he conveyed none to his grantee Austin by his deed in October, 1841. The defendants have no legal title, upon which they can rest their defence. By their purchase of Austin’s interest and by Smith’s conveyance to them they have become the mere assignees of the latter’s equitable interest in the estate, with full knowledge of all the infirmities of his title, and subject to all the equities subsisting between him and the orators. We insist, that the orators are not entitled to any part of the relief prayed. The circumstance, that no authority can be brought to sustain it, is conclusive evidence against it. The authorities cited by the orators do not sustain the legal propositions advanced by the bill. Courts of equity have been frequently called upon to protect the solicitor’s lien ; but it will be found, that the lien has been limited to papers of the client, or to the costs recovered, or funds in court, or to be paid into court. Pow. on Mort. 1063. It will also be found, that the lien of the solicitor is more circumscribed, than that of attorneys in the courts of common law. The solicitor can have no greater aid from the court to secure his lien, than that of the conveyancer, and he can only retain the deeds. Hollis v. Claridge, 4 Taunt. 807. Pow. on Mort. 1063. The rule in England is, that an attorney cannot take from his client, ah ante, a legal mortgage ; and if he cannot, it is difficult to perceive, how he can have a lien on the land itself, which, if carried out, is in substance the same. Pow. on Mort. 1064. Pitcher v. Rigby, 9 Price 79. Jones v. Tripp, 1 Jac. 322. To allow the lien would conflict with the registry system and with the statute of frauds, would render the title to real estate insecure and uncertain and impede its sale and transfer. The two classes of cases in the English law, which bear the strongest analogy to the doctrine contended for by the plaintiffs, are, first, the vendor’s lien for the purchase money, secondly, an equitable mortgage arising from the deposite of title deeds; but it will be found, that the analogy is extremely faint. In the first case payment of the purchase money is an essential part of the contract, and the right of the vendee is not complete, in equity, although a conveyance has been made, until the purchase money is paid. Per Ld. Eldon, 2 Rose 328. The case of Russell v. Russell, 1 Bro. C. C. 269, is the first reported case, establishing an equitable mortgage, since the statute of frauds of 29 Car. 2. It was based on a case decided just previous to the statute. The best English judges have considered the doctrine in opposition to the statute and la-merited the decision, but considered themselves bound by the authorities. Per Ld. Eldon, in Ex parte Coming, 9 Ves. 115. Ex parte Wether ell, 11 Ves. 398. Ex parte Whitbread, 19 Ves. 209. Ex parte Haigh, 11 Ves. 403. Norris v. Wilkinson, 12 Ves. 192. Pow. on Mort. 1052.