115 Pa. 59 | Pa. | 1887
delivered the opinion of the court, January 3d, 1887.
There can be no question of the jurisdiction of a court of equity over this cause if the paper of April 4th, 1879, executed by the defendant,-is a valid obligation. That paper directed Mr. Barton, as attorney for the defendant in an ejectment case then pending, in case of recovery, to pay out of the proceeds, first the costs, fees and expenses of recovery, the'n the judgment of the defendant against Henry Weaver, and next the judgment of Mrs. Weaver, the plaintiff, also against her husband, out of the, balance in Mr. Barton’s hands. Had the land been converted into money by Mr. Barton, it would have been his duty to apply the proceeds in accordance with the directions contained in the paper, but that was not done, and the title to the land recovered still remains in the defendant who refuses to pay the plaintiff any part of the judgment held by her. If he was bound to make such payment because of the recovery of the land in question, when the recovery was had he held the title not only for his own benefit, but also for the benefit of the plaintiff, the present appellant, to the extent of the amount of her judgment, and to that extent he was a trustee of the title for her. No serious question, however, is raised as to the jurisdiction in equity. The important contention of the appellee is that the paper of April 4th, 1879, is not
It was found by the Master and was made very clear by the testimony of Mr. Barton that he, Mr. Barton, was counsel for Mrs. Weaver before any steps were taken to recover the land from Stewart, and before he had anything to do with Reed or even knew him. Mr. Barton’s son was more particularly concerned for Mrs. Weaver in the matter of her judgments against her husband, and it was he who first called his father’s attention to the facts which it was supposed would invalidate Stewart's title. It 'was then and in the interest of Mrs. Weaver, that-Mr. Barton advised that if the facts in question could be established the Stewart title could he defeated, but he at the same time advised that the proceedings to sell out Henry Weaver’s interest had better be commenced on some other judgment than his wife’s. Reed being a judgment creditor, it was thought best to sell under his judgment. He was accordingly communicated with and assented to the arrangement when it was explained to him. Mr. Barton testified, “ up to that time I had not been attorney for Martin Reed, but shortly after Mr. Reed called.” He also said, “the idea was to proceed originally on Mrs. Weaver’s judgments. That was Ed’s idea and Smith’s. Then Mr. Reed came and saw me and I heard his statement, which corroborated what I had heard before, except there was a paper outstanding which had been executed, but we did not know where it wras. We were anxious to get possession of it.” He also said that the paper of April 4th, 1879, “was executed to show what should be done with the proceeds of the property in case it should be recovered,” that he had a conversation with Reed because Mrs. Weaver had inquired what was to become of her, or what was to be done with her judgments in case he recovered, and that Reed said “he intended to have his own judgment out of it, and if there was any surplus left after paying expenses and his claim, he had no objection to her getting her claim out of it.” Then he wrote the paper of April 4th, 1879, read it to Reed, who signed it and the proceedings went on. He also testified that he “ said there was no impropriety in two creditors joining together to attack the sale, but to avoid reflections we •would not call her as a witness. It was fully understood between him and me that the paper in Mrs. Weaver’s possession would be important on the trial, which it was. Mr. Reed also had the understanding that we represented Mrs.
We think the testimony clearly discloses a case in which two judgment creditors of the same defendant agree to attack the title of one who had purchased the land of that defendant, and if they-succeeded in the effort, each was to be paid in any event the amount of their several judgments, if the proceeds of the recovery reached so far. When it is considered also that the counsel for one of the creditors, being desirous of collecting his client’s judgments, and discovering that for certain reasons it was desirable to proceed on some other judgment, advised that the other judgment creditor be brought in, and this was done, and the latter consented to join in the effort, having his own benefit in view, and then knowing that the first creditor’s judgments were also being enforced and her interest carried along with his own, and with this knowledge agrees in writing while the proceedings are pending, and before the results could be known that she should be paid out of the proceeds the amount of her judgments, in’case of success, it is not possible to say that such agreement was void because there was no consideration to support it. So far as Reed is concerned he obtained the benefit of the services of Mrs. Weaver’s counsel to do that for him which neither he nor any other person for him had ever thought of or advised to be done. He obtained highly important testimony which was in her possession, and which she permitted him to use in order that a recovery might be had, not for his benefit alone, but for their joint benefit — he obtained her acquiescence in a proceeding on his judgment only for the.sale of the land, when she might have refused her permission or insisted upon the proceeding being conducted on her own judgments exclusively ; she allowed him to use her own counsel throughout the proceedings as his counsel also, being under no obligation to do so, but for their joint advantage only, and not for his own sole advantage — and far more than this, she accepts from him an agreement in writing that she shall be paid out of the proceeds as well as -himself, and on -the. faith
But it is also objected, and was held by the court below, that because the judgments of Mrs. Weaver had been paid in some other manner and by virtue of other proceedings, she can not have payment out of these proceeds. If this were a case of conflicting claims upon a common fund, and the payment of the Weaver judgments would be in prejudice of the Reed judgment, there would of course be the greatest force in this objection, and it would certainly prevail. But no question of that kind arises. The judgments of Mrs. Weaver against her husband were regularly revived, and as against him they were perfectly good. Reed, with a knowledge of the revival and of the amounts of the judgments, agrees that they shall be paid out of the proceeds of the recovery if, after paying all costs and expenses his judgment is first paid in full. The proceeds are far more than enough to pay all costs and expenses, his judgment in full and the judgment of Mrs. Weaver in full, and still leave a considerable profit to Reed. How, then, is he injured or defrauded by the enforcement of his agreement? Of course he is not defrauded because he is only asked to pay what he expressly agreed to pay, and he is not injured in the slightest degree, because there is an ample fund in his possession with which to pay both himself and the plaintiff. In other words, he gets every benefit from the contract which he stipulated to get, and more besides, after paying Mrs. Weaver the whole of her claim. He is in no position to say that the judgments were paid in some other manner. It is no concern of his. He sustains no injury by being obliged to pay the plaintiff’s claim. He is simply prevented from making, at her expense, a considerable sum of money which he never bargained for,, which he was not entitled to upon any aspect of his contract, and which, in our opinion, it would be highly inequitable and unjust to permit him to keep.
The. decree of the court below is reversed at the cost of the appellee, the plaintiff’s bill is reinstated and the record is remitted with instructions that a proper decree be entered in. • accordance with the foregoing opinion.
