
    Stephen A. West, Appellant, v. Alexander S. Bacon, Respondent.
    
      Attorney’s lien — limited to services in the particular action — what recital in a declan'ation of trust does not constitute a waiver thereof.
    
    The judgment in an action, brought by Kate B. West against J. Adriance Bush and Stephen A. West to set aside a conveyance of real estate by the plaintiff to Bush, dismissed the complaint; declared that Bush was a trustee; that he held the property for the benefit of Stephen A. West, the husband of the plaintiff in said action, and required Bush to execute and deliver to the husband, or to such person as he might nominate, a deed of the premises, which Bush did, conveying them to .one Bacon, one of the attorneys for the husband in that suit. At the same time, Bacon executed a declaration of trust stating that ho held the property “for the purposes expressed in said judgment and in no other way, to wit, to hold the same for the benefit of said Stephen A. West, * * * and to convey the same to such person as said Stephen A. West may in writing direct, and to pay over the proceeds of such sale to said Stephen A. West.”
    Thereafter, Stephen A. West brought an action against Bacon to enforce the trust and to compel a conveyance of the property by Bacon, in which Bacon answered, setting up, as a counterclaim, that there was due to him the sum of $500 for services rendered in the previous suit of Kate B. West against J. Adriance Bush, and asked that he be declared to have a lien upon the premises to that extent.
    
      Held, that, under the provisions of section 66 of the Code of Civil Procedure, he was entitled to a lien upon the real estate in question to the extent of the value of the services which he rendered in the first action, but that this lien did not cover any general indebtedness of the client to his attorney;
    That the use of the words “for the purposes expressed in said judgment, and in no other way,” in the declaration of trust, was not to be construed as a relinquishment by Bacon of his lien upon the premises in question for the services which he had rendered in the first action.
    Appeal by the plaintiff, Stephen A. West, from a judgment of the Supreme Court in favor.of the defendant, entered in the office of the clerk of the county of New York on the 15th day of July, 1896, upon the decision of the court rendered after a trial at the New York Special Term.
    
      Charles D. Ridgway, for the appellant.
    
      George Edwin Joseph, for the respondent.
   Patterson, J.:

The material facts of this case are the following : In 1889 certain real estate in the city of New York was conveyed to J. Adriance Bush by Kate B. West, the wife of the present plaintiff. In 1891 she brought an action against Bush to set aside that conveyance on the ground that it was procured from her by her husband upon false representations made to her respecting the purpose of the conveyance. Her husband was brought in as a defendant, and he, appearing by Nichols & Bacon, attorneys, interposed an answer denying the allegations of his wife’s complaint and claiming to be the owner of the property. The case came on to be tried, and in December, 1892, a judgment was entered dismissing the complaint, declaring that Bush was a trustee; that he held ■ the property for the benefit of Stephen A. West only, and that the plaintiff had no “interest, legal or equitable, of any name or nature whatsoever,” in the property, and required that Bush execute and deliver to Stephen A. West, or to such person as he might nominate, a bargain and sale deed of the premises with covenants against the grantor. Apparently, in execution of that decree, Bush conveyed the premises to Alexander S. Bacon, one of the attorneys, and Mr. Bacon now holds the legal title to the property, Hpon receiving the deed, and of his own motion, in order that the true relation of Mr. West to the property might be established by documentary evidence, Mr. Bacon executed a declaration of trust as follows: “ I hold said property for the purposes expressed in said judgment (being the judgment above referred to) and in no other way, to wit, to hold the same for the benefit of said Stephen A. West, free and clear of any and all dower rights or other lien or interest whatsoever of Kate B. West, wife of said Stephen A. West, and to convey the same to such person as said Stephen A. West.may in writing direct, and to pay over the proceeds of such sale to said Stephen A. West.”

This action is brought by Stephen A: West to enforce that trust and to compel Mr. Bacon to convey the property to Mr. Ridgway, another attorney, who brings this action for the plaintiff. The court below ordered a judgment requiring the conveyance to be made, but only upon, the plaintiff satisfying Mr. Bacon for certain demands claimed by the latter to be a charge upon the property, and consisting, first, of $294.02 awarded to him as trustee, being charges accrued in the administration of the trust and commissions, and also the sum of $500 for services-rendered in the suit of Kate B. West against Bush, which, as'above stated, resulted substantially in the recovery of the real estate by the plaintiff and the establishment of his sole title to, and right in, those premises. The plaintiff admits that the decree is correct, so far as the $294.02 are concerned, but argues that $500 should not have been allowed, because the declaration of trust in terms specifies that Mr. Bacon held the property for the purposes expressed in the judgment and in no other way.

The judgment with reference to the $500 cannot be sustained upon any notion of an equitable power in the court to charge upon this land any claim which the plaintiff’s attorneys might have against him for services rendered generally upon a professional employment. The only ground upon which it can he sustained is that the attorney had some lien upon the land, alien to enforce which he would be entitled to resort to the property. If it be a good and enforcible lien, it was competent for the court to settle the matters in controversy between the .parties by the decree entered herein and thus save any further litigation. The real question, therefore, is whether there is any such lien as to this $500. No objection can arise on the pleadings with reference to this point, because it is specifically set up in the answer that the defendant demands the $500 as a counterclaim, and that the property in question is part of the proceeds of a litigation in a certain action, being that above referred to. The defendant claims the lien for his fees as attorney in that action as well as in other litigations wherein the defendant has rendered service to the plaintiff as his attorney, but the property cannot be made liable for any general indebtedness of the client to the attorney. The plaintiff in this action was adjudged to he the owner of the premises by the judgment in the action brought by his wife against Mr. Bush. It was as a result of the professional services rendered by Mr. Bacon or his firm to the defendant that the right and title to that property became fixed in the defendant and the conveyance was directed to be made to him or his appointee. Thus the premises were recovered for the defendant in that action. He had neither title nor possession, hut acquired them both virtually by the judgment for he has been in actual possession since the judgment was entered. He took the premises as the proceeds of the action, and, by section 66 of the Code of Civil Procedure, the attorney had a lien upon his client’s counterclaim which attached to the decision, to the judgment in his client’s favor, and to the proceeds thereof, il in whosoever hands they may come.” The lien of the attorney in this case attached to the land, as the jiroceeds of the suit adjudged to belong to the defendant, and the attorney yas entitled to enforce that lien against the land. But it is claimed that the defendant relinquished his lien or abandoned it by making the declaration of trust, and the form and tenor of that instrument are referred to as indicating such relinquishment. I do not think it is susceptible of that Construction. It is certainly one which should not be given to defeat a just and meritorious claim, unless it is compelled by the terms of the instrument itself. Mr. Bacon states in the instrument that he holds the premises undei and subject to the' terms of the judgment, and in' no other way. The words, “ and in no other way,” were evidently used merely as exclusive words showing that he, Bacon, had no interest or right in the premises as the owner thereof, or other than as holding them for his client, subject to the terms of the judgment; but it cannot be assumed, as between West and Bacon, that by that statement Mr. Bacon intended anything further than to make the declaration that he took the title, as the nominee of Mr. West, for the judgment in the suit of West v. Bush directed Mr. Bush to convey to Stephen A. West, or “to such person as said- Stephen A. West may, in writing, direct.” That is the only term of the decree material here, and the declaration of trust merely constitutes an admission by Mr. Bacon that his title derived from Bush is only a nominal one, so far as the ownership of the premises is concerned. To say that he intended to relinquish his lien is giving a forced construction to the declaration of trust; and Mr. Bacon’s claim was properly recognized by the court below.

The lien can be allowed only to the extent of the value of the services rendered by the defendant or his firm in the one action of West v. Bush, in which the property was adjudged to belong to the defendant. West, and, according to Mr. Bacon’s own testimony, the total value of such services is §450 and not §500.

The judgment should, therefore, be modified by deducting the sum of fifty dollars from the amount allowed as a charge upon the property and, as thus modified, affirmed, without costs. .

Btjmsey and Williams, JJ., concurred; Yah Bbuht, P. J., dissented.

Judgment modified as directed in opinion and, as thus modified, affirmed, without costs.  