25 Wash. 508 | Wash. | 1901
The opinion of the court was delivered by
This action was brought by appellants to set aside a satisfaction of record of a certain chattel mortgage, to reinstate the said mortgage, and to foreclose the same, and sell the property covered thereby to satisfy an alleged attorney’s lien on said mortgage and said property, and the amount due appellants from defendants Harrington and Daw, on an open account. The facts and circumstances, as presented in the record, are substantially as follows: Messrs. Brady & Gay and Milo A. Boot, as attorneys, were employed by defendant Frank Daw to collect an account held by the latter against defendant Harrington. The account was reduced, through the efforts of counsel, to the form of a note and mortgage; the mortgage covering certain stock and fixtures belonging to Harring
Several exceptions were saved to the findings of fact of the court below, but we do not believe that a particular discussion of them is essential to the determination of this case; the facts above set out being conceded, and the findings appearing to be warranted by evidence. Appellants contend that a lien given by statute in this state to an attorney upon his client’s papers is an enforcible lien, and is not affected by a bona fide purchase of property covered by the instrument on which the lien is claimed. Originally, at the common law, there was no attorney’s charging lien. 'There was a general or retaining lien, which con
“An attorney has a lien for his compensation . . . upon the papers of his client, which have come into his possession in the course of his professional employment.”
It seems apparent that the statute did not intend to confer an enforcible lien against papers in possession, as it provides no method for the enforcement of such lien. This, indeed, is but a recognition of the general law that a retaining lien may not be enforced, but may merely be used to embarrass the client, or, as some cases express it, to “worry” him into the payment of the charges. 13 Enc. Pl. & Pr., 143 and notes; 3 Am. & Eng. Enc. (2d ed.), 464; Weeks, Attorneys, 760-75; Jones, Liens, § 132; Mechem, Agency, §§ 860, 867; Hurlbert v. Brigham, 56 Vt. 368; Manning v. Leighton, 65 Vt. 84 (26 Atl. 258, 24 L. R. A. 684); Bozon v. Bolland, 4 Myl. & C., 354, 358; Heslop v. Metcalfe, 3 Myl. & C. 183; Colegrave v. Manley, T. & R. 400; In re Wilson, 12 Fed. 235; McDonald v. Railroad Co., 93 Tenn. 281 (24 S. W. 252); Brown v. Bigley, 3 Tenn. Ch. 621; Tillman v. Reynolds, 48 Ala. 365.
It is evident that, if the retaining lien is an active lien, such as can be enforced by process, the statute must fur
It is contended by the learned counsel for appellants that, even if the attorney’s lien was waived or lost by the transfer of the papers on which such lien was claimed, the delivery of the note and mortgage in pursuance of the order of the payee and mortgagee, without indorsement or written assignment, constituted an assignment in equity enforcible by appellants against the property in the possession of the respondents to tlie extent of their claim against Harrington and Daw. But we are unable to agree with counsel upon this proposition. After the order was given to the attorneys to turn over the note and mortgage to appellants, which they refused to do, it was then agreed, as we have seen, between appellants and said attorneys, that the latter should pay appellants’ claim out of the moneys which they might collect on the note, after satisfying their charges for professional services. Possession of the note and mortgage was retained by the attorneys until after the mortgaged property had been sold to Thayer and Miller and the mortgage satisfied by the mortgagee, and nothing was ever collected by them on the note. Whether the mere delivery of a note and mortgage by the payee and mortgagee (without indorsement or written assignment) to a creditor constitutes, in this state, such an assignment that the holder may enforce the mortgage by
We are clearly of the opinion that the judgment of the court below was right, and it is, therefore, affirmed.
Reavis, C. J., and Dunbab, J., concur.
Eullebton, J., concurs in the result.