Ware's Adm'r v. Russell

70 Ala. 174

• Court: Supreme Court of Alabama
• Decided: December 15, 1881
• Status: Published

Opinion

BRICKELL, C. J.

The right and title to personal property is not changed by the levy of any attachment, or of an execution. Tlie general property continues in the defendant, and he may alienate it, subject only to -the lien of the process. The lien is not a right of property — it is not a jus in re, nor a jus ad rem. It is a simple preference, or priority, created by law, to subject the property, by sale, to the satisfaction of the execution, or other process issuing on the judgment in the attachment suit, if the plaintiff succeeds in recovering judgment. The transfer or assignment to the appellees is not affected in validity,, merely because the subject of it is personal property on which an attachment had been levied. The title passed, subject to the lien of the attachment; and that lien could be removed by the satisfaction of the judgment which may be obtained against the assignor, and would be defeated if the attachment suit did not ripen into a judgment in favor of the attaching creditor.—Denny v. Willard, 11 Pick. 519; Arnold v. Brown, 24 Ib. 89; Atwood v. Pierson, 9 Ala. 656.

All contracts between attorney and client, made after the formation of the relation, touching the compensation of the attorney, or by which the client transfers to him an interest in the matter of suit, .or a right or interest in- and to property involved in litigation, are closely watched, and jealously scrutinized, Avlien, as between them, their validity is drawn in question. The confidence the relation involves — the power over the client the attorney naturally acquires, the opportunity and danger of oppression and the exercise of influence, compel courts to a most jealous supervision of all such contracts; and as between attorney and client, they are supported only when all the circumstances attending them import that they are fair, just, and untainted with an abuse of the relation. The infirmity of the contract in this respect renders it only voidable at the election of the client. If he acquiesces, strangers to the contract have no right or cause to complain. If the assignment could be regarded as a contact of this character, the client has made no complaint of it, and it must be treated in this controversy as if it had been made between parties not sustaining any relation of confidence. If, hoAvever, the assignment is champertous, or if founded oh the consideration of maintaining or defending suits at law, it is void, and no court will lend its aid to its enforcement. Champerty, with us, is the unlawful maintenance of a suit, in consideration of some bargain to have a part of the thing in dispute, or some profit out of it; and covers ail transactions and contracts, whether by counsel or others, to have the whole or part of the thing or damages recovered. Poe v. Davis, 29 Ala. 683; Holloway v. Lowe, 7 Port. 488. The corrupting element of the contract is its tendency to foment or protract litigation, its dependency for its value upon the termination of suits, and its introduction, to control and manage them, of parties without other right or interest than such as is derived from the contract. It is not enough to condemn a contract, that its subject-matter is property or a right or interest involved in litigation, or which, to be reduced to possession, or made capable of beneficial enjoyment, necessitates litigation. Property or rights involved in litigation, or resting wholly in action, are not incapable of transfer or assignment; nor are attorneys inhibited from acquiring them, by a fair contract of purchase. If the contract does not savor of maintenance — if it is free from champerty — if it is not in its essence a mere agreement to maintain a suit, or to share its profits, and it is otherwise fair, and supported by a valuable consideration, it will be enforced.—2 Story’s Eq. § 1050.

The assignment to the appellees is, in terms, absolute and unconditional, passing to them immediately the general ownership of the property. Whatever may be the event of the suit in which the property had been levied on, the title to the property would remain in them, subject only to the lien of the attachment. 'There was no undertaking or promise that they would indemnify the assignor against the judgment in that suit, or would defend it at their own costs and expenses; or that they would intervene in it otherwise than as the attorneys of the assignor. On the contrary, the assignor stipulated for his own diligence in the defense of the suit, that the lien of the attachment should be removed as an incumbrance on the property, and to relieve himself, doubtless, from the liability to the appellees in which he would be involved because of the failure of the title, if the lien of the attachment prevailed. The consideration of the assignment was not fees or compensation payable only, or to be incurred, in the event pf success in defending the attachment suit, or in the prosecution of the contemplated suit for the wrongful or malicious suing out of the attachment. The assignment is founded .on the consideration of a precedent debt, and retaining fees to defend the one suit and prosecute the other. The relation existing between the parties, that of attorney and client, requires a more vigorous examination of the contract, and of all the attending facts, than it would be subjected to, if the parties did not stand in a relation affording like opportunity and temptation to champerty and maintenance; and unexplained circumstances of suspicion would lead to conclusions unfavorable to the validity of the contract. But, when the contract is shown to be free from all condition — when it does' not involve the duty of commencing or continuing litigation, and it is supported by a fair and valuable consideration — debts payable at all events, though the consideration of such debts may be compensation for professional-services rendered, or" which the attorney is retained to render, the contract can not be condemned as champertous, or as savoring of maintenance.—Thukelheimer v. Brinckerhoff, 16 Amer. Decisions, 301, and note; Moody v. Haryer, 38 Miss. 599.

The assignment passed to the assignees the general property-in the things upon which the attachment was levied. It placed the assignees in the exact position of the assignor as to these things, and divested him of all capacity by any subsequent transaction, by negotiation with Ware, or otherwise, to change that position to their injury. While the assignor could transfer no higher or greater right than he possessed, of that right he could fully divest himself; and having divested himself of the right, his acts, admissions or contracts, whatever may be their operation as against himself, are without force as against his assignees. The measure of right to which Ware was entitled, and the measure of right the law preserves from impairment, was the lien of the attachment, in the state and condition of the lien at the time of the assignment. In its very nature, the lien is inchoate, conditional, dependent on the rendition of judgment in the attachment suit, upon which process could rightfully issue for the subjection of the property attached, not merely upon the rendition of judgment binding Humber personally. While the assignment substituted the assignees to the title of Humber in its condition at the time it was made, and subject to the burdens then resting upon the property; and while the law is solicitous to preserve the rights then existing, Ware had acquired by the lien of the attachment; there is equal solicitude to preserve the rights of the assignees exactly as these rights were acquired, free from impairment or disappointment by any act of the assignor, who, not having an interest in the property, ought not to have capacity to bind it, directly or indirectly. If it be true, that the attachment levied on the property was irregular — if it were subject to abatement, because of defects apparent on the face of the proceedings; or if it be true that there was not a debt due or owing from Humber to Ware, which could form the basis of a proceeding by attachment; Humber, after the assignment, was incapable of waiving the irregularity, or of voluntary submission to the rendition of judgment, so that the burden resting upon the property would be increased. Power to waive the ii’regularity, to confess judgment as if he had been regularly brought into court, to withdraw all defense, binding himself personally, resided in him, and he was fi’ee" to exercise it, either with or without any new consideration moving to him. If his power extended furthér — if, by a mere agi’eement with Ware, he could fix a liability on the property, or could remove the obstacles to the conversion of the inchoate lien of the attachment, into a moi’e certain charge upon the property; if he could waive irregularities which must resultan the defeat of the lien'ultimately,, he would retain power to disappoint and nullify the assignment.

The contract between Iiumber and Ware is valid as between themselves. ■ By it Humber is bound, and he does not seek its repudiation. Notwithstanding the assignment, he could sub1' mit to a personal'judgment in the attachment suit; and his power to control the-suits lie had .instituted, to -abandon or continue the prosecution of them,.was unrestrained.- The use of .the contract, to -this extent, was not unjust to the appellees. The use of it for the purpose-of obtaining a judgment in the attachment suit which would bind the property, and subject it to a burden different from that resting upon it at the time of the assignment, is inequitable. Long before this contract, Ware had notice of the assignment — notice that Iiumber had parted with all. interest in the property; -and good faith required him to abstain from all dealings with Iiumber on the basis of continuing ownership in him. . The preservation of his rights in. the condition in which-they .were at the time of the assignment, is the measure of justice to which Ware is entitled, and to the same measure the. appellees are entitled.

In the court of law, a general and unqualified judgment only could be rendered. The court was without power to mould and adapt its judgment to the particular circumstances of the case, meting out exact justice to all parties in interest. A general judgment for Ware in .the attachment suit, upon which a venditioni exponas, or other .process, could issue for the sale of the attached property, if it were rendered in pursuance of the contract between him and Iiumber, would be unjust to the appellees. A judgment binding Humber personally, and yet so limited as not to affect the right and title of the appellees to the property attached, if it should be ascertained the attachment was irregular, or that there was really no debt due from Iiumber to Ware, is- the appropriate relief under all the circumstances. When a simple, unqualified judgment for either party will not do complete justice —when modifications or adjustments are necessary to fix, control and equalize the rights of the several parties, the. remedy at ■■ law is inadequate, and a court of equity will intervene,, adjusting the whole controversy so that complete justice may be done.-1 Story’s Eq. §§ 26-30.

The. .decj-ee of the' chancellor seems to- be erroneous, in several respects. First, in directing the cancellation of the contract between Humbfer and Ware. • As between them, the contract is-valid, and should be allowed full operation. Second, in enjoining. Ware from.the use of it'to procure the dismissal of the suits instituted by Humber, to which it refers. Third, in the prohibition of its use to obtain in the attachment suit a judgment binding Humber personally. Fourth, in view of the particular circumstances of the case, and that the jurisdiction of the court had attached because of the inadequacy of remedies at law, in not proceeding to a final determination of the controversy, .though it may involve in some particulars mere legal questions. It is a very general principle in a court of equity, that if it has jurisdiction of the primary objects and purposes of a suit, because of the. inadequacy of remedies at law, it will settle litigation, and do complete justice between the parties, without remitting them again to the jurisdiction of courts of law.—1 Brick. Dig. 639, .§ 5. If the pleas in abatement of the attachment interposed by Humber, before entering into the contract with Ware, are not well taken, — a question the chancellor must decide, as he is required to decide other mere legal questions arising in the course and progress of proceedings before him, and as to which he must follow the law,— there should be a reference to the register, to 'ascertain, from other evidence than that which may be derived from the contract between Humber and Ware, the existence and amount of the debt on which the attachment issued; and for the amount, when ascertained, a decree should be rendered (and for the costs in the attachment suit in the court of law), and charged upon the property on which the attachment was levied. If that decree is not satisfied, then the liability as sureties on the replevin bond should be-adjusted and enforced; the adjustment to be made in view of the fact that, as to the cotton which was sold with the consent of Ware, there is.no liability on the bond.

Let the decree of the chancellor be reversed, and the cause remanded, for fiirther proceedings, -in conformity with this opinion.