Turnbull v. Banks — 22 A.D. 508

Majority

p. 508

Ann Turnbull, Appellant, v. Charles G. Banks, Respondent.

Headnote

Attorney and client — a mortgage taken by an attorney from his client enforced only to the extent of the value of his services.

An old and feeble woman, ignorant of business and its methods, who wrongfully supposed that her nephew was an equal owner with her in certain premises, upon his commencement against her of an action for a partition of the premises, and also for the establishment of a claim in connection with the property, which, if successful, would have deprived her of all interest in it, made an agreement with an attorney, who was familiar with the title and knew that the nephew could not maintain the action for partition, by which, in consideration of the execution by the old woman of a mortgage upon the premises for one-half of their value, the attorney undertook to defend the action.

The trial of the partition action resulted in the dismissal of the complaint, and the old woman presented a claim against the nephew for board, etc., which resulted in a compromise of his claim, leaving the old woman in possession of the property free from any claim thereon.

Held, that the attorney was not entitled to assert the mortgage for any greater amount than the fair value of his services.

Appeal by the plaintiff, Ann Turnbull, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 29th day of December, 1896, upon the decision of the court rendered after a trial at the Westchester Special Term dismissing the complaint upon the merits.

The action was brought for the cancellation of a mortgage given to the defendant an attorney, in pursuance of an agreement by

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which he undertook to defend, on behalf of the plaintiff, an action for the partition of the premises upon which the mortgage was. given, for one-half of their value.

Heuben Leslie Maynard, for the appellant.

S. O. Henderson, for the respondent.

The evidence in this case is sufficient to support the finding that the plaintiff executed the bond and mortgage in question, with a full understanding of what she was doing, and with an intent upon her part to give to the defendant a lien upon her property for its amount, but, with this conceded, it by no means follows that the defendant was entitled to a judgment dismissing the complaint of the plaintiff. The conceded facts of the case are, that the plaintiff is an old lady, and evidently but little used to the transaction of business or acquainted with business methods. A summons had been served upon her in an action, brought by her nephew, for the partition of certain real property, and also for the establishment of a claim in connection with such property, which, if successful, would have deprived her of all interest therein. The plaintiff was so little informed about the property, and of her legal rights in connection therewith, that she supposed that the nephew in fact owned one-lialf of the property, and, in addition, held the claim which he asserted, which would equal the value of the other half of the property and leave her with nothing.

The parties in the partition action had associated together for a long time, and it would seem that the nephew had lived with the plaintiff in her home and was in fact justly indebted to her for board, nursing in sickness and for money advanced. The defendant herein is a lawyer and was familiar with such relations, and with the title to the property, as he had searched the title prior to this time. It was with this knowledge of the property upon his part, and of the relations which had existed between the nephew and the old lady, that he proceeded to deal with the plaintiff when she applied to him for advice. The plaintiff was utterly ignorant of her legal rights; the defendant was possessed of full and accurate knowledge concerning them. This is fairly to be inferred from the defendant’s

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testimony. It does not need acumen of a high order to see that the old lady, believing that she had no interest in the property, would willingly agree to give a half if thereby she could get the whole, and secure a half to herself. The defendant had little difficulty in procuring the old lady to accede to his terms for one-half; indeed she was somewhat eager to enter into the agreement, as it promised something "when she thought she was entitled to nothing. The sequel proved that the defendant was in nowise mistaken concerning the rights of his client, for with little difficulty he procured a dismissal of the complaint in the partition action, it appearing that the plaintiff therein was without interest in the property, while, upon the defendant’s suggestion, the old lady easily made up an account against the nephew for board, services rendered and money advanced, amounting in all to something over $7,000. This resulted at once in a compromise of the claim of the nephew, leaving the old lady secure in the possession of the legal title to her property without charge of any kind in favor of the nephew.

From this recital it is quite evident that the parties did not deal upon equal terms. On the contrary, their respective conditions were strikingly unequal. One was old, feeble, little used to business or its methods, in ignorance of her legal rights and misled to her prejudice by a belief that she was without interest in the property. The other, learned in the law, familiar with business, informed concerning the plaintiff and her rights, and possessed of the ability to defend them. It may be, very likely is a fact, that the defendant believed that he might safely deal with the old lady, and that he thought that as he had formerly received no pay from her for his services, and she had no money with which to presently compensate him, he was justified in making the arrangement which he did and taking the mortgage. But it seems to us quite clear that for the time being he overlooked the relation existing between 'himself and his client and subordinated her rights to his interest.

We have recently had occasion to consider the law bearing upon cases of this character, and have asserted the rule of law applicable thereto. (Matter of Demarest, 11 App. Div. 156 .) It is not necessary that we repeat it here. Its binding force compels us to a condemnation of the contract entered into in this case. But, while we reach this conclusion, we also conclude that there is nothing in the

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case which calls for a more rigorous rule than will strike out from the mortgage the amount which we regard as excessive for the services which were rendered. The proof shows that their fair value does not exceed $500, and for this sum, with interest, the mortgage may be upheld, applying thereon the payment of $150.

The judgment should, therefore, be reversed and a new trial granted, with costs to abide the final award of costs.

All concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs.