Miller v. Monroe, 5717
Decision Date | 01 June 1931 |
Docket Number | 5717 |
Citation | 50 Idaho 726,300 P. 362 |
Parties | CLARENCE S. MILLER, Executor of the Will of LILLIE B. HESS, Deceased, Appellant, v. FINLEY MONROE, Respondent |
Court | Idaho Supreme Court |
ATTORNEY AND CLIENT-ATTORNEY'S LIEN-LIMITATION OF ACTIONS.
1. Where attorney's lien was for services and fixed by decree foreclosing mortgage, objection that contract for services was within statute of frauds could not be sustained in action to quiet title against claimed lien.
2. At common law, attorney had retaining lien on papers pertaining to suit while in his possession and charging lien on judgment as against judgment creditor.
3. Statute was intended to extend attorney's lien to follow judgment in client's favor and proceeds (C. S., sec 6576).
4. Attorney's lien attached to land after mortgage foreclosure sale and purchase by administratrix who was judgment creditor and sole legatee (C. S., sec. 6576).
5. Attorney's claim arising in administration of estate was not lost for want of presentation and allowance (C. S., sec 7584, Laws 1929, chap. 280, sec. 13).
6. Attorney's lien on realty was not lost for want of presentation to administratrix and allowance (C. S., sec 7588).
7. Attorney's lien, attaching to realty as proceeds of judgment procured for client, remains lien until paid or discharged, or until property passes to innocent purchaser without notice, or unless ten- year presumption of payment arises (C. S., sec. 6576; Laws 1929 chap. 56, sec. 2).
8. Four-year limitation statute bars remedy, but does not presume payment (C. S., sec. 6610).
9. Although statute of limitations has run and equity will not enforce lien, court will deny relief against debt and refuse to quiet title until payment of debt or until statutory presumption of payment arises (C. S., sec. 6610; Laws 1929, chap. 56).
10. Trial court must find on all issues tendered, but failing to inject issue is not error.
APPEAL from the District Court of the Seventh Judicial District, for Gem County. Hon. Ed. L. Bryan, Judge.
Action to quiet title to real property. Judgment for defendant. Affirmed.
Judgment affirmed. Costs to respondent. Petition for rehearing denied.
Ira W. Kenward and Lot L. Feltham, for Appellant.
If respondent ever had a lien after the sale of the premises on foreclosure, he lost it under his neglect and under the statutes of limitations. Over seven years passed after this foreclosure sale before this action was commenced. During all that time no claim or demand was asserted by respondent. There was no competent testimony or evidence showing this claim was ever brought to the attention of Lillie B. Hess, and the record shows the first the appellant learned of it was Sept. 1929. (C. S., secs. 6608 and 6610.)
"The lien on the judgment is destroyed when an attorney's claim for services is barred by the statutes of limitations." (C. S., sec. 380, p. 776; Reavey v. Clark, 56 Hun (N. Y.), 641, 9 N.Y.S. 216; 18 Civ. Proc. Rep. 272, 30 N.Y.S. 535; Coombe v. Knox, 28 Mont. 202, 72 P. 641.)
The defendant was guilty of laches, for neglecting to assert his claim, if he had any, within a reasonable time, and for this reason would not be entitled to claim or enforce a lien upon plaintiff's lands. (Smith v. Faris-Kesl Con. Co., 27 Idaho 407, 150 P. 25.)
J. P. Reed, for Respondent.
When a statute provides that the lien of an attorney attaches to the proceeds of the judgment, lands purchased by plaintiff on execution or foreclosure sale to satisfy the judgment are deemed to be "proceeds of the judgment." (2 A. L. R., pp. 484, 485, note; Skinner v. Busse, 38 Misc. 265, 77 N.Y.S. 560; Porter v. Hanson, 36 Ark. 591; 6 C. J., pp. 380, 381.)
Under a statute like ours, the lien of the attorney clings to any property or money into which the subject can be traced, until it reaches the hands of a bona fide purchaser. ( Fischer-Hansen v. Brooklyn Heights R. Co., 173 N.Y. 493, 66 N.E. 395; Hansbrough v. D. W. Standrod & Co., 49 Idaho 216, 286 P. 923.)
This is an action to quiet title to real property against claims of defendant alleged to be without foundation or right. It is not an action to remove a cloud or for the cancellation of any document of record.
The defendant answered and by cross-complaint set forth a claim of lien for attorney's fees.
The trial court found the defendant had an attorney's lien on account of legal services rendered in the foreclosure of a mortgage which resulted in a sheriff's deed conveying the property to the predecessor of the plaintiff, but found the statute of limitations had run against the lien. The court refused to quiet the title against the lien, but dismissed the cross-complaint as setting forth a cause of action which had outlawed.
Plaintiff appeals. There is no cross-appeal.
We have examined the assignments of error challenging the pleadings and sufficiency of the evidence to sustain the findings of the trial court and find no error in those rulings. There is also a claim that the contract for the services was within the statute of frauds, but that objection cannot be sustained because the alleged lien was for services rendered and fixed by decree foreclosing the mortgage.
The remaining assignments of error raise four questions which we shall discuss:
1. Does an attorney's lien for fees in procuring a judgment attach to land purchased by the judgment creditor in satisfaction of the judgment?
2. If an attorney's lien attaches to real property so acquired by an administrator of an estate, does it survive the decree of distribution where the administrator is sole legatee?
3. If the lien does so survive but is permitted to outlaw, will a court of equity deny enforcement of the lien and at the same time refuse to quiet title?
4. In an action to quiet title in which an unauthorized record of a notice is disclosed is it error to not remove such cloud?
Attorneys have a statutory lien in this state for services performed. C. S., sec. 6576, provides:
It will be noted this statutory lien is much broader than the common-law lien. Under the common law the attorney had a lien for the amount of his services which obtained as a retaining lien on all papers pertaining to the suit while they were in his possession, and also a charging lien on the judgment as against the judgment creditor. Under this lien the authorities, quite uniformly, have held that where the judgment has been satisfied the lien is lost, and this is true even though satisfaction is by sale under execution and purchase by the judgment creditor. (Jones on Liens, 3d ed., secs. 229, 291; Goodrich v. McDonald, 112 N.Y. 157, 19 N.E. 649; Prichard v. Fulmer, 22 N.M. 134, 159 P. 39, 2 A. L. R. 474.)
It is thought the statutory lien was intended to extend the force and application of lien to follow the "judgment in his client's favor and the proceeds thereof in whosoever hands they may come." Without exception courts have given effect to this provision where the statutory lien obtains, and...
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