Fowler v. Callan

also to assume all costs and expenses of the litigation and' indemnify his client against them. It is this feature oí the contract which raises the question necessary to be determined.

The facts of the case are not very fully developed, but appear to be that the defendant, as devisee under a will', was entitled to certain real estate, his right dependent upon the validity of the will and in some manner threatened by proceedings before the surrogate which put his interest in. peril, and made a defense essential to its protection. In this emergency he sought the aid and professional services of the plaintiff and retained him as attorney. The latter neither sought the retainer nor did anything to induce it. So far as appears, it was not occasioned by any offer or solicitation of his, but originated in the free and unbribed choice of the client. The evidence does not show whether the latter had gained possession of the land devised or was out of possession, but he gave to the attorney a deed of the one undivided half part of the property, taking back his covenant to conduct the defendant’s defense to its close, paying all costs and expenses of the litigation and indemnifying the devisee against all such liability. The agreement-appears to have been purely one for compensation. If the-client had given to the attorney money instead of land, the contract would have differed in no respect, except the contingent character of the compensation. The arrangement contemplated success in the litigation, in which event-the land would pay the costs and expenses and the-attorney’s reward, and both would be discharged out of the property of the client placed in the hands of the attorney for that precise purpose. The contract in no respect induced the litigation. That was already begun and existed independently of the agreement and originated in other causes. It dia not tend to prolong the’ litigation. It made it to the interest of the attorney to close it as briefly and promptly as possible, and at as little cost and expense as prudence would permit. The plaintiff, therefore, stirred up no strife, induced no litigation, but merely agreed to take for his compensation so much of the value of the land conveyed to him as might remain after, out of that value, the costs and expenses had been paid. We do not think the statute condemns such an agreement. 3 R. S. (6th ed.), 449, §§ 59, 60; Code, §§ 73, 74. The Code revision changed somewhat the language of the prohibition, but nevertheless must be deemed a substantial re enactment of the earlier sections. Browning v. Marvin, 100 N. Y.. 148 They forbid, first, the purchase of obligations named by an attorney for the purpose and with the intent of bringing a suit thereon; and second, any loan or advance, or agreement to loan or

advance “as an inducement to the placing or in consideration of having placed ha the hands of such attorney ” any demand for collection. The statute presupposes the existence of some right of action, valueless uioless prosecuted to judgment, which the owner might or might not prosecute on his own behalf, but which he is induced to place in the hands of a particular attorney by reason of his agreement to loan or advance money to the client. It contemplates a case in which the action might never have been brought, but for the induceiaaent of a loan or advance offered by the attorney, and in which the latter by officious interference procures the suit to be brought and obtains a retainer in it. The statute speaks of a “demand” which, by enforcement, will end in a “collection;” phrases which have no aptness to the situation of one simply defending a good title to land against the efforts of others seeking to destroy the devise under which he claims. The plaintiff made no “loan or advance ” in any proper sense of those words. They imply a liability on the part of the clients to repay what was thus lent or advanced.

The attorney loaned nothing, and he advanced nothing to the chent which the latter was bound to reimburse. Simply he was paid in advance an agreed price, taken in land instead of money, and out of which he was first to pay costs and expenses. The facts before us are not within the temas of the statute, as it respects a “demand,” which is the subject of “collectioia;” but our coiaclusioaa rests more stroaagly upon the convictioia that the agreement íoaade was oiae for compeaasation merely, and had in it iao vicious eleíaaeiat of inducing litigatioia or holdiaag out bribes for a retaiiaer.

The judgment should be í’eversed and a new trial granted; costs to abide event.

Ah concur..