Bill in chancery praying for the removal of the defendant as the
trustee in a deed made to secure to the complainant the payment of
a bond in the defendant's possession and for the delivery of the
bond. The defendant asserts a lien on the bond for legal services
rendered to the complainant.
Held:
1. That while a state of mutual ill will or hostile feeling may
justify a court in removing a trustee, in a case where he has a
discretionary power over the rights of the
cestui que
trust and has duties to discharge which necessarily bring the
parties into personal intercourse with each other, it is not
sufficient cause where no such intercourse is required and the
duties are merely formal and ministerial, and no neglect of duty or
misconduct is established against him.
2. A contract to pay to an attorney at law for his services in
suits concerning land if it be recovered, a specific sum of money
out of the proceeds when it
Page 96 U. S. 405
shall be sold by the client is not champertous, because he
neither pays costs nor accepts the land or any part of it as his
compensation.
3. Nor is it void under the statute of frauds because not in
writing, for it may be performed within the year.
4. The land having been recovered and by the owner sold for
$38,000, for which a bond was taken and left with the attorney, the
latter has
a lien on the bond for money due him for his services as
such.
5. Where, under the circumstances mentioned, the client brings a
bill in chancery for the removal of the attorney from his position
as trustee in the deed to secure the purchase moneys and for the
delivery of the bond, it is the duty of the court to decide on the
existence and amount of the lien set up in the answer and to decree
such delivery on payment of the amount of the lien, if one be found
to exist.
6. Though the defendant, by neglecting to file a cross-bill, can
have no decree for affirmative relief, it is proper for the court
to establish the condition on which the delivery of the bond to the
complainant, according to the prayer of the bill, should be made
and to require such delivery on the performance of that
condition.
On the twenty-sixth day of November, 1870, Mrs. Mary A. Cox, the
appellee, who was a widow, sold and conveyed to Charles H. Holden,
Charles W. King, and Samuel Ford square No. 312 of the City of
Washington for the sum of $38,000. No part of this was paid at the
time, but a bond was given for it due ten years after date, with
interest payable annually, and to secure the payment of this sum
and of the interest as it fell due the purchasers made a deed of
trust, with the usual conditions, to John D. McPherson and Jesse B.
Wilson. At the time of the transaction, the bond was placed in the
possession of McPherson, the appellant, where it remains to the
present time.
In June, 1873, Mrs. Cox filed her bill in chancery in the
Supreme Court of the District of Columbia praying that McPherson be
discharged and removed from his trust under the deed and be
compelled to deliver to her the bond of Holden, King, and Ford.
The court decreed that on account of the ill feeling and
unfriendly relations shown to exist between the parties by reason
of a controversy between them in regard to a claim of McPherson for
$5,000 for legal services against Mrs. Cox, and of a lien for that
amount on the bond mentioned, it was fit and proper that he should
cease to be such trustee. It accordingly declared him removed as
trustee, and all his rights and powers
Page 96 U. S. 406
vested in the other trustee, Wilson, and ordered him to deliver
up the bond to Wilson, who was to hold it subject to the further
order of the court. But Wilson was to receive and pay over to Mrs.
Cox all that might be paid on it except $10,000 of the latest
payments, which was to be retained subject to the further order of
the court.
From this decree, McPherson appeals to this Court.
The remaining facts in the case are set forth in the opinion of
the Court.
Page 96 U. S. 410
MR. JUSTICE MILLER delivered the opinion of the Court.
The question for our consideration is the soundness of the
decree of the court below.
The pleadings show the original bill, an amended bill, and three
supplemental bills and answers and replications to the answers.
The charges on which complainant asked the removal of McPherson
may be classified into those which affirm a neglect of his duty as
such trustee and into those which show acts and intentions hostile
to her interests.
Of the first class are charges:
1. That arrears of interest on the bond have been permitted to
accumulate, and that he failed to collect such interest or to sell
the property, as the deed of trust authorized.
2. That he neglected to attend to having the property insured or
the taxes paid, as was his duty, and in this connection she charges
that she had paid him $150 for that purpose.
Of the acts which show hostile or fraudulent intentions she
charges:
3. That, on a sale made by the obligors in the bond of part of
the property, he induced her to release the lots so sold and accept
thirteen notes of $1,000 each, secured by a mortgage on them, which
notes she supposed was the first lien on those lots, whereas, it
turned out that three other notes of like amount of the same
series, secured by the same mortgage, had been issued and sold to
bona fide holders, and that these notes were a prior lien,
and endangered her security. She alleges that this was well known
to McPherson, who was acting as her agent and trustee, and was
fraudulently concealed from her.
4. That he had notified Ford, one of the obligors in the bond,
to pay her no more money, and had thus prevented him from paying to
her the interest after it was due.
5. And mainly that he sets up a false and exorbitant claim of
$5,000 for legal services, and claims a lien on the bond in his
possession and a right to appropriate the first money paid on said
bond to the satisfaction of said claim.
The answer denies that the deed of trust imposed on him any
obligation to collect the interest or see to the insurance of the
houses or to the payment of the taxes. Denies that he
Page 96 U. S. 411
ever received any money from her to pay for insurance or any
notice to sell for nonpayment of interest or taxes. Denies any
hostile purpose towards complainant and any act or intent
inconsistent with his duty as trustee. He admits that he does
assert a claim for $5,000 due to the partnership firm of Carlisle
& McPherson, for services as attorneys and counselors in regard
to this same property, and for which he claimed, and now asserts in
this answer, a lien on the bond and a right to hold it until that
sum is paid. And he denies that in the transaction by which she
released certain lots covered by the deed of trust and received the
notes and deed of trust securing them that anything was concealed
from her. And in regard to this, he says that she was present when
the matter was transacted, and received in person the thirteen
notes and the money for which the other three notes were sold, and
knew well what she was doing.
Testimony was taken on all these issues, the most important of
which is that of the complainant and defendant and of Carlisle.
As preliminary to any further investigation of these issues, it
is necessary to determine the defendant's duties and his rights
under the deed of trust.
After the usual clause of conveyance, it proceeds thus:
"In and upon the trusts hereinafter mentioned and declared, and
for no other purpose whatsoever, that is to say:"
"In trust first to permit the said Charles H. Holden, Charles W.
King, and Samuel Ford, their heirs or assigns, to use and occupy
the said described premises and the rents, issues, and profits
thereof to take, have, and apply to and for their sole use and
benefit until default be made in the payment of the principal sum
of the debt hereinbefore mentioned, or of some installment of the
annual interest."
"Second, upon payment of any installment of the principal of the
said debt, to release to the said parties of the first part of said
square, which they shall designate in the proportion of two square
feet of ground for every three dollars so paid."
"Third, and upon full payment of the said debt of thirty-eight
thousand dollars ($38,000) and of the interest thereon and all
other proper costs, charges, commissions, and expenses incurred in
pursuance of this trust, to release the said square numbered
three
Page 96 U. S. 412
hundred and twelve (312), or so much thereof as has not been
released, unto the said parties of the first part, their heirs and
assigns, at their proper cost."
"Fourth, and upon this further trust upon default being made in
the payment of the said principal sum, or of any interest due on
the same, to sell at public auction, on such terms and after such
notice as the said trustees or trustee shall deem proper, so much
of the said property as they or he shall deem necessary to pay the
sum due, and out of the proceeds, in the order following, to pay,
1st, the costs and expenses of said sale, including the usual
trustee's commission; 2d, to pay the amount due the said Mary A.
Cox, whether of interest or principal; 3d, to pay the said Mary A.
Cox the residue of said proceeds to an amount not exceeding the
principal sum, or the part thereof unpaid to be received by her in
advance, in whole or part satisfaction, as the case may be, of the
said principal sum; 4th, to pay over the residue, if any, to the
said parties of the first part, their executors, administrators, or
assigns."
There is here no duty or obligation or right to do more than two
things -- namely to make the releases of parts or of the whole of
the ground, as the payments entitled the obligors in the bond to
have them made, and to sell the land or parts of it, as their
failure to pay might justify, and in making such sale to receive
and distribute the money as required. But it is very clear that the
trustees assumed no obligation to look after the taxes or the
insurance. The deed of trust does not mention either taxes or
insurance. Nor were they bound, or did they undertake by anything
found in this instrument, to look after the payment of the annual
interest. The bond was made payable to complainant, and she alone
was authorized to receive the interest and to give a valid receipt
for it. Payment to either of the trustees would have been no
defense to a suit by her.
It is very clear, therefore, that as there was no duty imposed
upon the defendant as trustee to look after the taxes or insurance
or the collection of the interest, he was guilty of no neglect in
regard to them.
If, as complainant alleges, her interest was not paid, she had a
right to have the two trustees advertise and sell the property or
so much of it as would be necessary to pay what was due.
Page 96 U. S. 413
But they were not bound to do this, nor had they any right to do
it, until she made request, and there is no pretense that she ever
made such request or desired such action.
It is proper to say in this connection that the testimony wholly
fails to show the payment of $150 or any other sum, to defendant to
be used in paying for insurance. We may also add that there is not
the slightest evidence that defendant concealed from the
complainant, or in any manner misled her in the transaction, by
which she released the lots mentioned, and received other security
for such release. But it appears very clearly that she was present
when the whole thing was done, and received the money for which the
notes first due were sold, and, if she did not know they were a
first lien, it is not the fault of McPherson.
There remains to be considered the charge that he forbade Ford
to pay money to complainant, and that he sets up a false claim for
$5,000, and the right to a lien on the bond for that sum.
These may be considered together, as they involve the main
subject of controversy below, and lie at the foundation of the
suit.
McPherson occupied in these transactions, and is charged in the
bill and supplemental bills of complainant with misconduct in two
distinct characters or relations to her -- namely, as trustee in
the deed we have mentioned, and as her counsel and attorney in the
management of her lawsuits, and legal adviser in regard to her
property. It is important to keep this distinction in mind, for it
runs through the whole case, and is recognized in the decree, which
not only removes him as trustee under the deed but requires him to
deliver up the bond, although it seems to recognize a right of his
in that bond to be established by future litigation.
Now as we have already said, this bond was payable directly to
complainant. She was entitled to its possession and to receive all
the money paid on it so far as anything in the trust deed or any
right conferred on McPherson by that trust is concerned. Its
possession, as connected with the trust, belonged neither to him
nor to his co-trustee Wilson. If, therefore, he had any right to
that possession, it must be found in
Page 96 U. S. 414
the other relation we have mentioned, and we will proceed to
consider that.
We have the deposition of three witnesses, and three only, who
knew and could tell the facts on which the lien of McPherson must
rest, if it exist at all. These are the complainant, the defendant,
and Carlisle, the law partner of defendant, and interested with him
in the lien asserted.
In regard to the facts which are relied on to create the lien,
there does not seem to be much, if any, difference in the
statements of the parties. It is only when they come to the amount
that these difference are irreconcilable.
Without entering minutely into the examination here of what each
witness says, we will first state what we consider established
beyond question.
It appears that complainant had made to Angus and Lewis a long
lease of square 312, with a right in them to purchase at a fixed
price -- namely $15,000. That while they held the property under
this contract it had risen very much in value, and Mrs. Cox became
desirous to get released from it. For this purpose, she employed
McPherson and Carlisle as her lawyers, and they succeeded in
recovering possession of the property, avoiding the contract and
recovering rents and profits amounting to $2,700. In doing this,
they successfully prosecuted an action of ejectment, a separate
action for mesne profits, and defended a suit in equity brought by
Angus and Lewis to enforce the original contract. That in employing
the law firm of Carlisle & McPherson to attend to this
business, she agreed to pay them a fixed sum for their services
which, in a letter written to them after a controversy had arisen
as to the amount so fixed, she says "was to be paid out of the
proceeds of sales of the property, as such proceeds shall be
realized." After the embarrassment of Angus and Lewis' claim had
been removed, the whole square was sold, as we have already shown,
to Holden, King, and Ford, and the deed of trust and bond made by
them, and the bond left with the defendant. This bond was the first
proceeds of the sale of the square.
Sometime after this and after Holden, King, and Ford had built
houses on some of the lots of the square, they sold them to James
Pike for $16,000, and obtained the release of them
Page 96 U. S. 415
by Mrs. Cox from the lien of the deed of trust by giving her
$13,000 in those notes as payment on the bond and paying her in
cash $4,000, the proceeds of the other notes given in the same
transaction. In the deeds of trust given by Pike on those lots to
secure said notes, McPherson and Wilson were made trustees, as they
had been in the deed from which they were released, but, though the
original bond remained through all these transactions with
McPherson, the money and the notes arising from this last sale were
handed over to complainant. Although several years had elapsed, and
Carlise & McPherson had no written agreement with complainant
about their fee, they permitted the entire proceeds of this last
sale, and of the recovery for rents and profits, and the interest
which Holden & Co. had paid on their bond, to go into
complainant's hands without objection, and had during that time
frequently loaned her money, had acted as her counsel and attorneys
in both the sales, and drawn all the papers necessary to secure her
interests. Thus far, the facts seem undisputed.
But not long after this last transaction, McPherson addressed a
note to Mrs. Cox suggesting that the matter of the fee for the
services of his firm, resting only in parol, was not on that
account in a satisfactory position, and enclosing her a writing
which he requested her to sign acknowledging an indebtedness of
$5,000 for their services and a lien on the securities for the land
sold. To this she replied next day, refusing to do as requested
because she said the fee was to be $2,500, and not $5,000.
An animated correspondence now ensued between Mrs. Cox and
McPherson, into which Carlisle was also drawn by letters addressed
to him personally to Mrs. Cox.
Thereupon McPherson, either with a view to bring her to terms or
more probably as a protection to his right of lien, gave notice to
Ford, who had bought out his other partners, not to pay anything
more to Mrs. Cox on the bond; but learning a few days afterward
that Ford construed this notice or used it as a pretext for
delaying the payment of the interest due, he told him he could pay
the interest to Mrs. Cox. Not long after this, the present bill was
filed.
It will thus be seen from this condensed statement of facts
Page 96 U. S. 416
undisputed that complainant acknowledged that she had agreed to
pay to Carlisle & McPherson, out of the proceeds of the sale of
the property, if she was successful in getting rid of the contract
with Angus and Lewis, $2,500 as their compensation, of which she
has thus far never paid or tendered a dollar, and that they had
successfully performed their part of the agreement. As regards the
difference between the parties as to the amount to be paid by
complainant, the clear and circumstantial statements of Carlisle
and McPherson, under oath, are not overcome by anything produced by
complainant, and we are satisfied she agreed to pay $5,000.
This contract is now assailed as illegal on three grounds which
we shall consider in their order:
1. The first is that the amount is so large in proportion to the
services rendered, and the promisor being a woman without other
advice when she entered into the contract, that a court of equity
should hold it void as an unjust extortion from an unprotected
female.
Our answer to that is that we believe the services rendered were
worth the money, especially as they were to get nothing unless they
were successful.
2. It is said the contract is obnoxious to the doctrine of
champerty.
The answer is that the attorneys did not agree to pay any of the
costs, they did not agree to take any part of the land, which was
the subject of the suit, for their compensation, nor did they agree
to take anything but money. The single fact that they agreed to
wait for their money until complainant could sell the land, and to
receive a fixed sum out of the purchase money, does not, under any
definition of champerty, bring it within that principle.
3. It is said to be within the statute of frauds because not in
writing and not to be performed within a year.
But the statute of frauds applies only to contracts which, by
their terms, are not to be performed within a year, and do not
apply because they may not be performed within that time. In other
words, to make a parol contract void, it must be apparent that it
was the understanding of the parties that it was not to be
performed within a year from the time it was made.
Page 96 U. S. 417
Peter v. Compton, Skin. 353, decided in King's Bench by
Lord Holt, and the cases collected under that one in 1 Sm.L.C.
432.
There is nothing in the present contract to show that it was not
to be performed inside of a year nor anything to show that it could
not have been fully performed within that time. The action of
ejectment which settled the forfeiture of the lease might have been
brought and tried within that time, and the readiness with which
the property sold for $38,000 shows that the amount of the fee
might have been realized and paid before the year was out. At all
events, it cannot be said that the contract was not to be performed
within that time.
We are also of opinion that this obligation on the part of
complainant to pay $5,000 to Carlisle and McPherson was, and is
now, a lien on the bond in McPherson's possession. It is so by the
express contract of the parties, as admitted by Mrs. Cox. It was to
be paid out of the proceeds of the sale of the land recovered by
the suit in equity in which they were employed. The first sale of
the land was in a lump, and this bond for $38,000 represents the
proceeds of that sale. It is the only proceeds of the sale. It is
also a very fair inference, from the fact that the bond was left in
McPherson's possession, that it was done as a recognition of the
lien. There is no other reason why it should have been left with
him. It was no part of his right or his duty as trustee to hold it.
Its possession was in no way essential to any of the very few acts
which, as trustee, McPherson could be called on to do under the
deed of trust. It is therefore manifest that it was left with him
as her attorney or as a security for his debt. It is nonetheless
clear to us that, apart from the express agreement for a lien, the
same result follows from his relation to her as attorney, and the
possession of this bond as a paper coming to him in the course of
his employment in that character. We have decided in the case of
Paschal, 10
Wall. 483, that an attorney has a lien by law, under circumstances
similar to these, for all that is due him as attorney or counselor
on the papers of his client in his hands.
McPherson has done nothing to waive or defeat this lien. He
might very well have insisted, when the square was sold
Page 96 U. S. 418
to Holden & Co., that the fee should then have been paid or
secured to him out of the purchase money. But he accepted
possession of the bond as a concession to his client. He continued
her counselor all through the transaction. He advised with her
about the sale. He drew up all the writings necessary to the sale
and to the security of the purchase money. His consent to act as
trustee in a matter where his duties were merely formal, and in
which another trustee was joined with him, are in no sense
inconsistent with his position as her attorney and his rights
growing out of that relation. Until she changed them, their
interests were the same -- namely the faithful and prompt payment
of the money due on the bond. The money was hers, but out of it she
was to pay the $5,000.
Nor have we been able to discover in the conduct of McPherson
any hostility to complainant or to her interests or anything in
what he has said or done which is inconsistent with the faithful
performance of his duty to her under the deed of trust. The only
act looking in the slightest in that direction is his warning to
Ford to pay Mrs. Cox no more money on the bond. Finding her angry
with him and denying his right to hold the bond as security for his
fee, it was necessary to the protection of the security to give
some warning to the obligor of his right to be paid before the
money all passed into her hands. It may be well doubted if he was
not entitled, now after all that had passed, to be paid out of the
first money yet to be paid on the bond, even if it were the
interest. But, on reflection, he waived that and told Ford he could
pay her the interest. But there was in all this, and in all the
quarrel, mainly carried on by complainant, nothing which could in
the least interfere with or would be likely to color his action
jointly with Wilson in executing releases when the property was
sold or money paid or in advertising and making sale when required
by complainant in default of payment. If in doing this he wished to
retain his fee or any part of it, we have already shown it was his
right to do so, and that right cannot be inconsistent with any
right of hers, since she was the person who was to pay, and whose
debt would be paid, by such a course.
We are therefore of opinion that McPherson has a right
Page 96 U. S. 419
to the possession of the bond until the fee of $5,000 is paid,
and that he has done nothing inconsistent with his duty as trustee
under the deed of trust, nor displayed any hostile feeling to the
real legal rights or interest of complainant, nor failed or
neglected to perform any duty devolving on him as such trustee.
What, then, should be the decree of the court?
1. As to the removal of McPherson from the trusteeship we think
there is no ground for such action.
Where a trustee is charged with an active trust which gives him
some discretionary power over the rights of the
cestui que
trust and which brings him into constant personal intercourse
with the latter, it may be conceded that the mere existence of
strong mutual ill feeling between the parties will under some
circumstances justify a change by the court. But there is here no
such case. McPherson will have and can have nothing to do as
trustee which requires any personal intercourse with Mrs. Cox.
Unless Ford wishes to pay part of the money and ask a release of
part of the property, he has literally nothing to do as trustee
until the bond is due. And in all that he may have to do as
trustee, his duty is so merely ministerial and so clearly defined
that he can do her no harm whatever. When, in addition to this, it
is considered that there is another trustee with equal power and
without whom McPherson can do nothing, we see no danger to her
interests or any reason for his removal.
The following authorities support this view of the matter:
Forster v. Davies, 4 De G., F. & J. 133;
Gibbes v.
Smith, 2 Rich. (S.C.) Eq. 131;
Berry v. Williamson,
11 B.Mon. (Ky.) 245; Perry, Trusts, sec. 277.
Since, as we have shown, the appellee has a right to the
possession of the bond and there exists no reason for his removal,
it is suggested that there should simply be a dismissal of
complainant's bill. In support of this view, it is strenuously
maintained, by what we think is a misconception of the case as made
by the pleadings and the evidence, that the amount of the fee
claimed by McPherson and Carlisle, and the existence of the lien,
are not issues in this suit of which the court can take notice, or
on which it can found any action. It must be
Page 96 U. S. 420
confessed that the case is so far embarrassed by the
unaccountable failure of the appellee to file a cross-bill asking
for relief by a decree establishing his debt and his lien that no
affirmative relief of that character can be given. But it is not
true that the existence and the amount of that lien are not
legitimate subjects of inquiry in this case and necessary to a
proper decree.
Leaving out the matter of the trust, of which we have already
disposed, complainant asks as relief in regard to this bond, that
it be delivered up to her. As a legitimate defense to this demand,
McPherson answers that he has a right to the possession of the bond
as security for $5,000 due him by complainant. She, by supplemental
bills and replications, says you have no such lien, or, if you have
a lien, it is only for $2,500. It is beyond dispute, therefore,
that the pleadings put in issue the existence of the lien and the
amount of that lien for which McPherson can hold the bond. The
testimony taken is also mainly devoted to those points. The issue
is fairly made. What could be more pertinent to the relief sought
and to the defense against it than both these issue? It is clear
that the bond belongs rightfully to Mrs. Cox. If there is no such
lien, she is entitled absolutely to the relief she asked -- namely
to have its possession restored to her. If there is a lien on it,
she is entitled to have that possession on payment of the lien, and
whether she is bound to pay $2,500 or $5,000 or nothing, is to us
very clearly a legitimate issue to be tried in the suit. So far,
then, as ascertaining her right to the possession of the bond and
the terms or conditions on which that right could be enforced by
the court, it seems to us that the issue of the existence of this
lien and its amount were not only fairly in the case but necessary
to be determined to enable the court to render such a decree as the
pleading, the evidence, and the relief sought required.
That decree is this:
That the decree of the Supreme Court of the District be
wholly reversed. That a new decree be rendered there denying so
much of the relief sought by complainant as prays for the removal
of the defendant from his trusteeship. That it be declared that
complainant is entitled to the possession of the
Page 96 U. S.
421
bond of Holden, King, and Ford on payment to McPherson of
the sum of $5,000, for which he rightfully holds said bond as
security for his services to complainant as her attorney and
counsel. And that McPherson have liberty, if he be so advised, to
file a cross-bill for the establishment of his debt and his lien,
and for such remedy for its enforcement as equity can give in the
case.
MR. JUSTICE STRONG.
I concur in the reversal of the decree of the court below, but I
dissent from so much of the opinion as determines the amount due
Messrs. Carlisle and McPherson as compensation for their
professional services, for which the lien on the bond to Mrs. Cox
is asserted. I think that the amount, as well as the existence of
the debt, should be established in an issue sent to a court of law,
especially as no cross-bill was filed.
MR. CHIEF JUSTICE WAITE.
I dissent from the judgment in this case, and am entirely
satisfied with the decree below.
MR. JUSTICE HUNT and MR. JUSTICE HARLAN also dissented.