104 Kan. 813 | Kan. | 1919
The opinion of the court was delivered by
This is a proceeding in the nature of a creditor’s bill. On May 20, 1913, A. L. Sedbrook recovered a judgment against B. M. McCue for $5,367.50, which was subsequently assigned to the plaintiffs, who are his sons. They allege that McCue is the real owner of a number of tracts of land, the title of which is held in the'names of Mary McCue', his wife, A. H. Warner, W. M. Kinnison, C. B. Oldfield, Wesley A. Taylor, and Elbert McCue, who are named as defendants. It is averred that the defendants conspired with McCue, the judgment debtor, to secrete his property and thereby defraud and defeat his creditors. In her answer Mrs. McCue set out her interest in the land, alleging that she had acquired a body of land in Nebraska prior to her marriage, and with her own money had purchased an additional tract in that state, after her marriage, and that for convenience the title to her lands was placed in her husband; that thereafter she exchanged her Nebraska lands for a two-thirds interest in seventy quarter sections of lands in the counties of Stevens and Haskell in Kansas, and for convenience the title to these lands was allowed to stand in her husband, who owned the other one-third interest in the same lands; and that a sale of part of these tracts was made, and the money received therefor invested in other lands. During these transactions it is alleged that B. M. McCue was solvent and a man of large means, and that the title to Mrs. McCue’s land was allowed to remain for a time in his name as a matter of convenience, without any, intent to mislead or defraud any one. She further stated that long prior to the rendition of plaintiff’s judgment, McCue conveyed to her the lands mentioned, partly for the purpose of putting the record title of her lands in her own name, and partly for the purpose of paying her a large sum of money for which he was indebted to her by reason of the real-estate transactions; that this was done before the rendition of the judgment held by the plaintiffs; and that their judgment never became a lien upon these lands. ■ The plaintiffs replied, denying that Mrs. McCue had any interest in the lands the title of which stood in the name of
The defendant Warner answered that McCue became indebted to the New England National Bank, .and also the Garden City National Bank, of which W. M. Kinnison and himself were the president and cashier respectively, and that they had become sureties for McCue on that $30,000 of indebtedness. He further alleged that McCue had become financially embarrassed and involved in litigation with the Commercial Trust Company over a mortgage given by him and his wife upon all the lands described in plaintiffs’ petition, and also other lands, and that McCue entered into a contract with him and Kinnison by which the lands were transferred to them, in consideration of which they were to advance money to pay the expenses of the litigation, and also for the purpose of paying underlying liens, thus saving a part of the land; and at the same time protecting the obligation which they had assumed as sureties for McCue. He further alleged that advances had been made under the agreement for expenses and the payment of liens, aggregating about $60,000, which was a valid lien upon the lands transferred to them by a deed, which was in effect a mortgage, and was superior to plaintiff’s judgment lien. It was also alleged that th'e lands had been conveyed by Kinnison to the defendant Warner, and that he holds the same under the terms and conditions of the contract for himself and Kinnison.
In the trial it was shown that a contract had been made with F. Dumont Smith and Albert Hoskinson, attorneys at law, by which they were to conduct the litigation between McCue and the Commonwealth Trust Company, which Kinnison and Warner had agreed to finance, under which the attorneys were paid a retainer and an amount of money for expenses of the litigation, and as further compensation it was agreed that they should receive one-half of all the moneys or properties that might be saved by their efforts through litigation, compromises, or otherwise. The trial court held that plaintiffs had failed to establish their claims of fraud and gave judgment for the defendants. The plaintiffs insist that the land transactions between McCue and his wife were not made in good
The litigation with the Commonwealth Trust Company not only involved large interests, but was of a complicated and difficult character, and this appears from a branch of the litigation which reached this court. (Lynn v. McCue, 94 Kan. 761, 147 Pac. 808.) In a later trial the mortgage of the trust company was canceled, and no appeal was taken from the judgment. To carry out the provisions of the judgment, Charles G. Cobb,- to whom the trust company had transferred its interests, executed a deed to Kinnison and thereby released the mortgage and removed that cloud from the. title to the lands.
Plaintiffs contend that the contract vvith the attorneys is contrary to public policy and void. It is not claimed that it is champertous, and the charge of invalidity is not specific. A large contingent fee was agreed upon, but—
“It is not illegal nor against public policy for a lawyer to prosecute an action for a client who is unable to pay for his services; no'r, in such a case, is it illegal or against public policy for the lawyer to contract with the client for compensation for his services out of the amount recovered, and contingent upon recovery.” (Stevens v. Sheriff, 76 Kan. 124, 90 Pac. 799.)
Neither can the contingent share agreed to be paid be regarded as unconscionable or inequitable. McCue was insolvent and without means to prosecute the action. The litigation necessarily involved much time, and skill, and work, as well as
The appeal involves little, but the sufficiency of the evidence to prove the alleged fraud. The testimony is too voluminous to warrant its reproduction here, but a careful examination of it satisfies us that there was no error in the holding of the trial court, nor in the judgment that was rendered.
Affirmed.