THOMAS W. BUTTS and ADELBERT W. BAILEY, Respondents,
MARIE JULIE COLLINS CAREY, Appellant, Impleaded with WALTER S. CAREY and Others, Defendants.
APPEAL by the defendant, Marie Julie Collins Carey, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 1st day of July, 1910, upon the decision of the court rendered after a trial at the New York Special Term.
Louis O. Van Doren, for the appellant.
P. J. Dobson [James J. Thornley and W. P. Vining with him on the brief], for the respondents.
The plaintiffs were practicing law as copartners, and on the 30th day of November, 1904, they were retained by Marie Julie Elizabeth Collins, who was originally made a party defendant herein, but died pending the action, to bring an action against her son, Charles H. Collins, to set aside a deed which she had executed to him, dated October 15, 1885, and delivered March 25, 1887, of certain premises subdivided into six lots now in the borough of the Bronx, county of New York. They accepted the employment on a contingent
basis. It was agreed that they were to receive nothing for their services unless they succeeded in recovering the property or some part thereof, or a judgment for the value or some part of the value thereof. The agreement by which they were retained was signed and acknowledged by them as well as by her. The further part of the agreement material to the issues presented by this action is as follows: 'In the event of recovering anything from her said son she shall and will pay, deliver, transfer and convey to them, and they will accept as compensation in full for their services and counsel fees, one-fourth of any and all money or property which may or shall be paid, allowed, awarded, adjudged or conveyed to her, or be otherwise recovered from him, his heirs or assigns, and she does hereby assign and grant unto them an undivided one-fourth part of said lots numbered 56, 57, 58, 71, 72 and 73, excepting the small lot 25 by 100 feet conveyed to Michael J. Doran by deed dated June 17, 1887; and excepting the plot 100 feet by 101.89 feet conveyed to Henry Germond and others by deed dated February 26, 1896. But it is agreed that upon adjusting the fee after judgment against or settlement with the defendant, the improved property, including the house and lot where she lives, shall be allotted to her, and if there be not sufficient land remaining to allot to them, a portion equal to one-fourth of the whole property recovered they shall receive the equivalent in cash, and she shall have the right to choose lots lying together and also to pay their fee in land or cash, or part in land and part in cash. To ascertain the proportion of cash to be paid, the property shall be appraised by the parties hereto at its fair and reasonable market value.'
They brought an action as contemplated and obtained an interlocutory judgment adjudging their client's son to be seized in fee as trustee for her, under her deed to him dated October 15, 1885, referred to in the agreement by which they were retained, of lots 56, 57, 73 and part of lot 72, and also adjudging that a subsequent deed from her to her son, purporting to convey lots 58 and 71 which he had reconveyed to her, was void and of no effect, and directing him to execute to her a deed of lots 56, 57, 73 and part of lot 72, and lots 58 and 71, and ordering an accounting. Pending the accounting their client conveyed to the appellant, who is her daughter, lots 58 and 71 and a small part off the rear of the part of lot
72 mentioned in the interlocutory judgment and off the side or rear of lot 57, which concededly embraced the homestead referred to in the agreement of retainer as the house and lot where the client resided, and according to the contention of appellant embraced no more, but respondent claims that it embraces considerably more. In area it included only a little more than one-half of the premises to which the retainer relates, for it embraced 23,500 square feet, leaving a remainder of the premises in area 20,700 square feet. This deed to the appellant was recorded, and on that fact coming to the attention of the plaintiffs they recorded the agreement of retainer and thereafter brought this action for a partition of the premises thus conveyed to the appellant, and to have it adjudged that the conveyance by their client to the appellant was subordinate to their rights under their retainer agreement and for other relief incident thereto, on the theory that the retainer agreement in and of itself constituted a conveyance to them of an undivided one-fourth interest in the premises, and that it also gave them a lien for their services on the entire premises. At the time they brought this action they had not fully performed the obligations they assumed by virtue of the retainer agreement, for they had not recovered a final judgment, or obtained a reconveyance to their client by her son. Pending the action the plaintiff Bailey transferred to the plaintiff Butts all his right, title and interest in the premises conveyed to appellant by their client, and in and under the retainer agreement as well.
The court found that the conveyance by the client to appellant was without consideration, and was made with knowledge on the part of the appellant of the agreement by which the client retained the plaintiffs, and as conclusions of law the court found that it was not only made without consideration, and with knowledge of said agreement, but that it was executed and accepted in fraud of the rights of the plaintiffs, although there was no allegation of fraud, and no proof of or finding of the fact upon which to base that conclusion of law.
Both the appellant and her mother allege as a separate defense that the mother's equity in the premises, the title to which she did not convey to the appellant, but retained in herself, was and is ample to ...