Crow v. Abraham

186 P. 426, 94 Or. 626, 1920 Ore. LEXIS 6

• Court: Oregon Supreme Court
• Decided: January 13, 1920
• Status: Published

Opinion

JOHNS, J.

To defeat the action against him the defendant, Abraham, claims title to an undivided one-half interest in the real property under his deed which was executed September 23,1908, concurrent with the written instrument, above quoted, which was prior to the suit of H. G. Crow v. E. J. Crow, from which it appears that Mr. Abraham was employed to prosecute that suit and that for his services he should receive an undivided one-third interest in the lands.

With that as a basis he entered into another agreement with other parties, whose names are not disclosed by the record, by which they were to furnish the necessary moneys for costs and expenses, in consideration of which they were to receive one half of Abraham’s one third or an undivided one sixth. It was nothing more nor less than an agreed contingent fee. There was no actual money paid. Abraham, as attorney for the plaintiff, had personal knowledge of all the surrounding facts and circumstances and was not an innocent purchaser for value. Taking and accepting his deed under these conditions, he could only acquire an undivided one-third interest in the title of H. Gr. Crow as it then existed, in H. G. Crow, and if Crow did not own the lands Abraham would not acquire any title by his deed. In the suit which H. G. Crow brought, in which Mr. Abraham was one of his attorneys, it was finally decreed that E. J. Crow was the owner of the lands and that H. G. Crow did not have any interest therein and was not entitled to an accounting. Under the facts disclosed in the record Mr. Abraham could not take or acquire any better, other, or different title than his grantor had at the time of its execution.

Again, while it is true that H. G. Crow did remain in possession of the lands after the final decree in the suit was rendered, no testimony was produced or offered which shows or tends to show that such possession was adverse or hostile to E. J. Crow who held the record title.

The facts are peculiar. When the deed from H. G. Crow to Abraham is construed with the concurrent written agreement between them and the collateral facts, the whole transaction is an agreement for a contingent fee which Abraham was to receive in the event that K. G. Crow won his lawsuit against E. J. Crow and H. G. Crow lost his case and the court rendered a decree that E. J. Crow was the owner of the lands. Growing out of the fact that H. G. Crow remained in actual possession of the lands after the decree was rendered and that he should pay for the value of the use and occupation of same, plaintiff commenced this instant case and now has a final judgment against the estate of H. G. Crow for two thirds of the rental value of the lands, and Abraham personally seeks to defeat judgment against him for the other third for the reason that through his deed from H. G-. Crow he then became and is now the owner of an undivided one-third interest in the lands.

However after that deed for the one-third interest was executed he brought suit, as attorney for H. Gr. Crow as plaintiff, against E. J. Crow to recover complete title to all of the land: In other words, having his own deed to the undivided one third of the land, Mr. Abraham brought a suit for his client, from whom he had obtained his title, in which his client asked for a decree that he was owner of all of the land and in which the title to all of the land was litigated and a decree was rendered against his client, H. Gr. Crow, and in favor of E. J. Crow. In legal effect the defendant, Abraham now seeks to litigate the identical question again as to his one-third interest.

If the agreement between H. Gr. Crow and Abraham were for a contingent fee in a personal injury case in which only a money judgment could be rendered and his client failed to obtain any judgment, it would then not be contended that his attorney would be entitled to have or receive the full or any amount of his contingent fee. In legal effect Mr. Abraham, by his defense is now claiming the full, amount of his contingent fee evidenced by the deed from his client for an undivided one third in the land. He lost the case for his client which he took on a contingent fee and for which he received his deed; and the plaintiff now has a judgment against-his client for the rental value of the two-thirds interest in the land which he claimed to own, and in the same action in which that judgment was rendered Mr. Abraham now seeks to defend, under the deed which he received from his client before the suit was brought to recover the property for his client and which deed was executed for the purpose of bringing that identical suit. The judgment is affirmed.

Affirmed. Rehearing Denied.

McBride, C. J., and Bean and Bennett, JJ., concur.