Avey v. Via

Decision Date19 June 1928
Citation7 S.W.2d 1057,225 Ky. 155
PartiesAVEY ET AL. v. VIA.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Hickman County.

Action by J. D. Via against W. S. and W. T. Avey and others, in which defendants named answered and filed a cross-petition. From an adverse judgment, named defendants appeal. Reversed and remanded.

J. M Brummal, of Clinton, for appellants.

F. B Martin, of Mayfield, for appellee.

McCANDLESS J.

On the ______ day of April, 1922, Mrs. Ludie M. Larue executed a deed to Mrs. Lillie May Williams for 500 acres of land on Wolf Island in the Mississippi river. Later R. W. Gray as committee for Mrs. Larue, sued Lillie May Williams and her husband to set that deed aside on the grounds of mental incapacity of the vendor, and that its execution was procured by fraud and undue influence. The defendants employed J. D Via to defend the suit, and executed the following written contract:

"This is to certify that I have this day employed J. D. Via to represent me in a lawsuit now pending in the Hickman circuit court wherein R. W. Gray, committee for Mrs. Ludah M. Larue, has sued Lillie May Williams to set aside a deed made to the said Lillie May Williams in said court. And I agree to pay the said J. D. Via, attorney a fee equal to 33 1/3 per cent. of the amount saved me in said suit, valuing the land at $10,000. We agree to pay the said J. D. Via as soon as the said suit is finally settled, and we agree to pay him this fee whether this suit is tried out to a final judgment or whether the same be compromised. S. B. Williams, husband of the said Lillie May Williams joins in this contract. This April 13, 1923.

Lillie May Williams.

S. B. Williams."

Mr. Via accepted the employment and successfully represented his clients in the circuit court and the Court of Appeals. Subsequent to which he defended the title for them in another action and was successful. After defendants' title to the land was confirmed, and on the 25th day of March, 1926, Mrs Williams and her husband duly executed and acknowledged a mortgage on this land to W. T. and W. S. Avey to secure an indebtedness due them for merchandise furnished them during a period of years, and evidenced by several notes aggregating approximately $3,000, and which was duly recorded on the 10th day of April, 1926. Following that on the 24th of November, 1926, Mrs. Williams and her husband executed a note to Via for $3,933, the aggregate amount due for his services in the two lawsuits, and as security therefor executed and acknowledged a mortgage on the same land, in which it was recited that this lien was to be superior to all other liens. This mortgage was also duly recorded. Subsequently Via brought suit on his note and to enforce this lien, and made the Aveys parties defendant. The Aveys answered and by cross-petition, sought personal judgment against the Williams, asserted a prior lien on the land, and sought its enforcement. In his reply, plaintiff alleged that, at the time of the execution of his contract of employment as attorney, Mr. and Mrs. Williams agreed verbally that, in the event of a successful defense of the suit against her, he should have a lien upon the land to secure the payment of his fee. He further alleged that at the time of his employment the Williams' were insolvent; that his services were as beneficial to the Aveys as they were to the Williams family; that the Aveys knew of his agreement with them, and that their subsequent conduct in procuring a mortgage and filing it was a fraud upon his rights, and that they did not thereby acquire any priority over his mortgage. Proof was taken along the lines indicated. The circuit court gave personal judgment in favor of both Via and the Aveys. It further found that Mr. and Mrs. Williams made a verbal agreement to give Via a prior mortgage on the land as claimed by him; that such agreement was enforceable as an equitable mortgage; that the...

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7 cases
  • Martyn v. First Federal Sav. & Loan Ass'n of West Palm Beach
    • United States
    • Florida District Court of Appeals
    • December 15, 1971
    ...JJ., concur. 1 For the historical discussion and development of these two theories, see Glenn on Mortgages, §§ 28--31.2 Avey v. Via, 1928, 225 Ky. 155, 7 S.W.2d 1057; Newman v. Newman, 1921, 103 Ohio St. 230, 133 N.E. 70; Penn Mut. Life Ins. Co. v. Kimble, 1937, 132 Neb. 408, 272 N.W. 231; ......
  • Prudential Ins. Co. of America v. Byrd
    • United States
    • Georgia Supreme Court
    • July 17, 1939
    ... ... successfully defending his client's title to real or ... personal property against an adverse claim thereto (King ... v. Acuff, 218 Ala. 619, 119 So. 833; Owens v ... Gunther, 75 Ark. 37, 86 S.W. 851, 5 Ann.Cas. [188 Ga ... 530] 130; Avey v. Via, 225 Ky. 155, 7 S.W.2d 1057; ... Butler v. Givens, 137 Tenn. 438, 193 S.W. 1063; ... Morey v. Schuster, 159 A.D. 602, 145 N.Y.S. 258, ... affirmed 217 N.Y. 639, 112 N.E. 1066; Elliott v ... Orton, 69 Okl. 233, 171 P. 1110, L.R.A.1918E, 103), in ... this State the contrary rule applies ... ...
  • Prudential Ins. Co. Of Am. v. Byrd, s. 12701, 12737.
    • United States
    • Georgia Supreme Court
    • July 17, 1939
    ...adverse claim thereto (King v. Acuff, 218 Ala. 619, 119 So. 833; Owens v. Gunther, 75 Ark. 37, 86 S.W. 851, 5 Ann. Cas. 130; Avey v. Via, 225 Ky. 155, 7 S. W.2d 1057; Butler v. Givens, 137 Tenn. 438, 193 S.W. 1063; Morey v. Schuster, 159 App.Div. 602, 145 N.Y.S. 258, affirmed 217 N.Y. 639, ......
  • Avey v. Via
    • United States
    • United States State Supreme Court — District of Kentucky
    • June 19, 1928
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