McPherson v. Cox
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96 U.S. 404 (1877)
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U.S. Supreme Court
McPherson v. Cox, 96 U.S. 404 (1877)
McPherson v. Cox
96 U.S. 404
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.
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
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
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.