The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-06-30

A contingent agreement TO cOmpen-
safe attorneys in land. or in money
came before the appellate division of
the supreme court in suit Of Thomas
w. Butts and Albert w. Bailey, the
attorneys, against Marie Julie Collins
Carey, the client, and others. to par
tition certain premises which became
the clients property as result or
the suit in which the contingent agree
ment was signed. Upon the trial of
the case the attorneys abandoned their
claim to a right to the partition OF the
premises and asked to establish lien
on the property under their retainer
They got judgment for the entire
amount of their services, but the APP
pellate division sets it aside and or
| ders a new trial.
In 1904 the attorneys who were
practicing as partners, were retained
| by Mrs. Collins to bring an action
against her son, Charles u. Collins, to
set aside a deed executed in 1885 to
six lots in the Bronx. They took the
case on a contingent basis, and were
to receive nothing unless they recov-
cred the property or some part there
of. or a Judgment for the value or
some part thereof. The agreement
provided that ''she shall and will pay,
deliver, transfer and convey to them,
and they will accept as compensation
in full for their services and counsel
fees, one-fourth of any eJ4d all money
I
paid BY the agreement the client
also transferred to the attorneys one
fourth of the property for which she
was suing, except two plots, and 1t was
agreed upon adjusting the Zee after the
Judgment the improved property, IN
/ GLIDING the house and lot where she
lived, should be allowed to her, and II
there was not a sufficient portion re-
manning to allow the attorneys one
fourth of the whole, they were to get
the equivalent in cash.
The attorneys obtained al fnterloc-
utory Judgment adjudging the prop
erty to be held by the son as trustee
for their client and directing him to
reconvey the property to his mother
and give an accounting. Pending the
accounting the client conveyed to her
daughter $500 square feet of prop
erty, leaving remainder of 20,7OO
square feet. When this deed came to
the attention of the attorneys they
filed their suit for partition Of the en-
tire property and to have it adjudged
that the conveyance was subordinate
to their rights under the retainer on
the theory that the retainer constitut-
ed a conveyance of an undivided one
fourth Of the premises At this time
they had not fully performed their
services under the retainer, because
they had not obtained a. final Judg-
ment or reconveyance to their client
/ by her son.
1 The trial court found that the con-
veyance by the client to her daughter
was without consideration, and was
executed and accepted in fraud of the
rights of the attorneys, although the
appellate division says there was no
allegation Of fraud upon which to base
1 the conclusion. The client and her
daughter contended that the mothers
equity in the property she did not
convey was ample to satisfy any lien
/ of the attorneys. The trial court ex-
cluded evidence on this point on the
ground that it was not germane TO
/ the issue. The higher court holds
that this was error.
| Justice Laughlin, writing the appel
late division opinion, says 1t is quite
clear that the attorneys are not en-
titled to a decree of a court OF equity
adjudging that they have lien against
the part of the premises conveyed by
the client If the clients equity in the
premises retained is of sufficient value
to protect the attorneys right under
the retainer. If there Is any ambi-
/ guilty. in the agreement of the retainer,
It is to be construed most strictly
against the attorneys who drew 1t, the
court said. The attorneys commended
that the client did not have a right to
make a. selection of any part OF the
premises until they had agreed with
| respect to the fee to be charged, but
Justice Laughlin says there is no Iorce
in this contention, and concludes;
1.-THE enforcement Of the general
agreement of retainer as herein sought
by the respondent would be oppres-
sive. and should not receive the sane
ton of court of equity. New YORK
Sun.