Farrin v. Matthews

Mr. Justice Burnett

delivered the opinion of the court.

1. “An attorney has a lien for his compensation, whether specially agreed upon or implied as provided in this section: * * (4) Upon a judgment or decree to the extent of the costs included therein, or if there be a special agreement to the extent of the compensation specially agreed on, from the giving notice thereof to the party against whom the judgment or decree is given, and filing the original with the clerk where such judgment or decree is entered and docketed.” Section 1088, L. O. L.

It is not pretended that the agreement between plaintiffs and the Belt Line Railway Company for compensation in the suit first mentioned was in writing, and at the hearing of this suit the defendant Matthews objected to any evidence on that subject on the ground that such a contract being one for the sale of an interest in land is within the statute of frauds, and must be in writing. The plaintiffs contend that this is a suit to foreclose their lien, notice of which was given in writing under the statute already quoted, and that consequently the statute of frauds does not apply to this suit. For the reason, however, that the plaintiffs demand as part of the relief invoked that the Belt Line Railway Company be compelled to execute and deliver to them a good and sufficient conveyance of ah undivided half interest in the lands in question, the case at bar must be deemed to be a suit for specific performance of a contract for the conveyance of an interest in' lands. But aside from this, if we consider the case to be one for the foreclosure of a lien, notice of which has been given in writing, still such a charge upon property of any kind is ancillary to *521 some principal or original obligation, without which it cannot exist. Hence whether we consider this suit to be •for the specific performance of a contract to convey an interest in land or to foreclose a lien for plaintiffs’ compensation, which they, allege to be a portion of that land, the final result must depend upon whether there was a sufficient agreement for that compensation, because without the contract there can be no lien to secure it.

“No estate or interest in real property other than a lease for a term not exceeding one year, nor any trust nor power concerning such property can be created, transferred, or declared otherwise than by operation of law or by a conveyance or other instrument in writing, subscribed by the party conveying, transferring, or declaring the same, or by his lawful agent under written authority and executed with such formalities as are required by law.” Sec. 808, L. O. L. “In the following cases the agreement is void unless the same or some note or memorandum thereof, expressing the consideration, be in writing and subscribed by the party to be charged, or by his lawfully authorized agent; evidence, therefore, of the agreement shall not be received other than the waiting, or secondary evidence of its contents, in the cases prescribed by law: * * (6) An agreement for the leasing, for a longer period than one year, or for the sale of real property, or of any interest therein.” Section 808, L. O. L.

By analogy at least, contracts of the kind mentioned in this suit are held void as being within the statute of frauds unless in writing in the cases of Jackson v. Stearns, 48 Or. 25 ( 84 Pac. 798 : 5 L. R. A. [N. S.] 390) ; and Jackson v. Stearns, 58 Or. 57 ( 113 Pac. 30 ). See, also Chenoweth v. Lewis, 9 Or. 150 .

2. The plaintiffs contend, however, that, having rendered the services as attorneys in securing the land for the Belt Line Railway Company, that performance takes the case out of the statute of frauds, and authorizes a decree in their favor for the interest in the land which *522 they claim. Performance of the services is all they urge. They do not pertend to have ever taken possession of the land in any sense of the word or to have made any improvements thereon. They do not establish any condition in which an action at law on the quantum meruit would not completely reimburse them for their services. The case they make is one tantamount to where the supposed purchaser has only paid the purchase price and nothing more. This is not such a part performance of an oral contract to convey land as to overcome the plea of the statute. Cooper v. Thomason, 30 Or. 161 , ( 45 Pac. 296 ). The result is the same whether the purchase price be paid in money or in personal services. Edwards v. Estell, 48 Cal. 194 ; Webster v. Gray, 37 Mich. 37 ; Temple v. Johnson, 71 Ill. 13 ; Horn v. Ludington, 32 Wis. 73 ; Russell v. Briggs, 165 N. Y. 500 ( 59 N. E. 303 : 53 L. R. A. 556).

The decree of the circuit court must be reversed, and one entered here dismissing the suit.

Reversed: Suit Dismissed.