Mirasola v. Rodgers , 120 W. Va. 685 ( 1938 )

This suit was brought in Brooke County to have a claim of Mrs. Mirasola's decedent against H. M. Rodgers, a resident of the county, declared a lien upon certain realty allegedly transferred by him in fraud of the claimant. We are not directly concerned now with that litigation, but with a petition filed in that suit by B. L. Rosenbloom and J. T. McCamic, attorneys of Wheeling, bringing in one Sara Baer, a resident of Cabell County. The petition alleges that petitioners have the present physical possession of a note of Rodgers payable to her, which she had delivered to Rosenbloom for collection upon the agreement that he should have fifty percent of what he could collect as his fee; that he notified Rodgers of his possession of the note, and of his interest in it; that he associated McCamic with him in its collection, agreeing that McCamic should share the fee, and that Rodgers was advised of this association; that petitioners made certain investigations preliminary to instituting suit against Rodgers, of which he was informed; that following all this, Rodgers made a secret and collusive compromise of the note with the payee, at much less than its face value, to their exclusion; and that Rodgers is worth the full amount of the note. The petition prayed that the Mirasola bill be amended, making petitioners parties thereto. The petition did not specify in terms the relief sought, but represented to the court that it should protect petitioners' "equitable assignment of fifty per cent of said note", and prayed for general relief. A demurrer to the petition was sustained and its sufficiency certified here.

The brief of petitioners advances these propositions: (1) The contract with the payee of the note conferred on them an equitable interest in it, pro tanto, and to that extent they became creditors of the payor; (2) this interest was not extinguished by the collusive settlement between payee and payor, but is still enforceable against him; and (3) under the statute, they were, in effect, parties to the Mirasola suit — it being one to set aside a fraudulent conveyance of the payor — and have the right to enforce their demand against him in that suit.

1. The point is made against the first proposition that it cannot obtain because petitioners had not even commenced litigation against Rodgers, much less obtained a judgment, prior to his settlement with Mrs. Baer. In some states, an attorney's rights in his client's cause of action are controlled by statute. We have none in this state. In jurisdictions without a statute, the decisions are not in harmony. In some, an agreement, like that here alleged, confers upon the attorneys no interest in the cause of action prior to realization of proceeds thereon. See Newell v. West,149 Mass. 520, 21 N.E. 954: Weller v. Ry. Co., 66 N.J. Eq. 11, 57 A. 730;Hargett v. McCadden, 107 Ga. 773, 33 S.E. 666;DeWinter v. Thomas, 34 App. D.C. 80. (Note criticism of the last citation in annotation 27 L.R.A. [N. S.] 634). In other jurisdictions, the interest conferred by such an agreement is immediate. It would seem on principle that the latter view is sound. An assignment results from contractual intent. Holmes v.Evans, 129 N.Y. 140, 144, 29 N.E. 233; Pomeroy, Eq. Juris. (4th Ed.), sections 1280, 1283; Lawrence, Eq. Juris., sections 234, 235, 240. If the intent is to pass a present interest, it passes immediately, irrespective of later realization. The right under the contract here should be clearly distinguished from the non-contract right of an attorney to a lien upon a recovery obtained for his client. That right arises by operation of law. Because the law thus voluntarily protects an attorney after recovery from his failure to secure his fee, is no reason in our opinion, for denying an attorney the security he has providently arranged for himself prior to recovery. Furthermore, such denial would impair the obligation of a contract and foster collusive settlements, prior to recovery, like that here alleged.

Mechem generalizes, doubtless correctly, that while some cases hold the mere agreement with an attorney to pay him out of a certain recovery to be an equitable assignment pro tanto of that fund, this is against the weight of authority "unless there are further evidences of assignment present." Mechem, Agency (2d Ed.), sec. 2286. The agreement alleged here is not that Mrs. Baer promised to pay Rosenbloom out of the collections, or that she bound herself personally to pay him anything at all; but is that he was to have as his fee fifty per cent of whatever he collected on the note then delivered to him. The appropriation for his fee was complete the instant the contract was completed. From thence forward he and, by association, McCamic, shared pro tanto Mrs. Baer's creditorship of Rodgers. Under the allegations, Rodgers could have paid the note directly to Rosenbloom, and the latter could have retained his per cent of the payment without further intervention of Mrs. Baer. A well considered case holding that such facts constitute an equitable assignment pro tanto is Fairbanks v. Sargent,117 N.Y. 320, 22 N.E. 1039, 6 L.R.A. 475. That holding is "familiar law" in New York, as well as in a number of other jurisdictions. See La Fetra v. Trust Co., 203 A.D. 729,197 N.Y.S. 332; In re Kitching's Estate, 141 Misc. 704,253 N.Y.S. 112, 116; In re Merrill's Estate, 165 Misc. 295,300 N.Y.S. 1142; Patten v. Wilson, 34 Pa. 299; Blakey v. Ins. Co.,28 Ind. App. 428, 63 N.E. 47; Canty v. Latternar, 31 Minn. 239,17 N.W. 385; Lashley v. Moore, 112 Okla. 198, 240 P. 704;Traction Co. v. Clark (Tex.), 272 S.W. 564. That law, in effect, is also recognized in our own case of Bent v. Lipscomb,45 W. Va. 183, 31 S.E. 907, 72 Am. St. Rep. 815, (second point syllabus).

2. A collusive settlement of a note between payor and payee does not extinguish the known equitable rights of an attorney in the note. State v. O'Brien, 89 W. Va. 634, 109 S.E. 830.

3. Code, 40-1-1, avoiding a conveyance made to defraud creditors applies to all having valid claims against the grantor. Carr v. Davis, 64 W. Va. 522, 63 S.E. 326, 20 L.R.A. (N.S.) 58, 16 Ann. Cas. 1031. Any such creditor "may come in by petition to a suit attacking a deed on the ground of fraud * * *." Richardson v. Ralphsnyder, 40 W. Va. 15,20 S.E. 854.

Since, by assignment, petitioners became creditors of Rodgerspro tanto, in their own right, the ruling of the circuit court is reversed. The cause is remanded.

Reversed and remanded.