Blunden v Desart

• Jurisdiction: Ireland
• Judgment Date: 01 December 1842
• Date: 01 December 1842
• Court: Court of Chancery (Ireland)

(Chancery.)

Blunden

and

Desart.

Chancery.

CASES

IN THE

COURTS OF CHANCERY, ROLLS,

AND

Equity Exchequer.

The owner of an estate which was subject to a charge, deposited the title deeds of it with a solicitor, in the course of his employment as such. After some costs had been incurred, the client confessed a judgment, and afterwards incurred more costs. After the client's death, a bill was filed to raise the amount of the charge, and final decree was pronounced for the sale of the lands. An order was then made in the cause, that the Solicitor should produce the deeds, for the purposes of the sale, without prejudice to his lien, if any, against the funds in the cause, for his costs. The entire of the estate was sold, but the produce of the sale was insufficient for payment of the judgment creditor and the Solicitor. Held— reversing an order at the Rolls—that the Solicitor was not entitled to any priority over the judgment creditor for any costs incurred subsequently to the entry of the judgment.

A Solicitor, with whom title deeds are deposited, cannot have any lien upon them as against a purchaser, or a mortgagee, or judgment creditor, of his client, for costs incurred after the estate to which the deeds relate had been sold or mortgaged, or after the judgment has been entered.

Where the Solicitor is obliged to produce the deeds in a suit instituted by a price encumbrancer, for the sale of the estate; Semble—That his lien is at an end, and that he can have no priority in respect of it, against the funds in the cause.

This was an appeal from an order of his Honor the late Master of the Rolls. The facts of this case, and the judgment of the Master of the Rolls, will be found in Mr. Stoker's report of the case, when at the Rolls; ante p. 52.

The case came on first before the Lord Chancellor, in Trinity Term, when his Lordship upon hearing it opened, directed that it should stand over until the next Term, in order that the subject should be discussed as fully as its importance required.

Mr. Pigot, Q. C., and Mr. David Lynch, in support of the appeal.

The Solicitor has two rights, which go by the general name of lien, but which are very different in their effects; the one is a general lien upon all deeds and papers which come into his hands in the course of his employment as a Solicitor, which extends to all costs due to him; the other, a lien upon a fund realized by means of a deed in his possession, which extends only to the costs incurred in the particular cause. The former species of lien, which is that we have to deal with here, is founded on custom and practice, Ex parte Nesbit (a); Richards v. Platel (b); Holies v. Claridge (c). The origin of it is stated by Lord Eldon, in Cowell v. Simpson (d), referring to Wilkins v. Carmichael (e), not to be very ancient. It is borrowed from the general law of lien; and like the lien of a factor or tradesman, is limited by the possession, and terminated by the loss of the subject matter on which it attaches, viz., in the present case, the deeds. Here the possession, and consequently the lien which

resulted from it, was lost in consequence of the order for the production of the deeds. That production was not voluntary on the part of the Solicitor, for the plaintiff in the cause was entitled to enforce it. That follows from the rights of the plaintiff; the Solicitor cannot derive from his client a better title to the deeds than the client himself had; he cannot withhold the possession of them from any person from whom his client could not have withheld them at the time of the delivery to him; and an encumbrancer on the estate, whose charge is prior to the attaching of the Solicitor's lien, can compel the Solicitor to deliver up the deeds for the purpose of realising his charge. For that, Smith v. Chichester (a) is a direct authority: there the mortgagee had a legal right to one part of the estate, viz., the chattel interest, and an equitable right to the other part, the freehold lease, yet the Court held that his right as to both was was prior to that of the Solicitor. In the case of Furlong v. Howard (b), a motion by the plaintiffs for the production by the defendant of a deed stated to be in his possession, was opposed on the ground that it was in the possession of his Solicitor who had a lien upon it for costs; but Lord Redesdale made the order, saying that when the client was bound to produce the deed for the benefit of a third person, the Solicitor was equally bound. In Ex parte Nesbitt (c) Lord Redesdale affirmed the Solicitor's right of lien as between him and his client, but drew the distinction between his right as against the client and his right against third persons. In Brassington v. Brassington (d), the executrix of a Solicitor who had prepared a settlement refused to produce it for the purpose of being proved on behalf of the plaintiff, the wife of the settlor, but the Vice-Chancellor (Sir J. Leach) compelled her to produce it, saying it might be very right that the husband should not have access to the deed for his own purposes without paying the Solicitor's bill, but that the refusal to produce it as a witness for the other party could not be justified. In Morgan v. Scott (e) a similar doctrine was acted on by the late Master of the Rolls (Sir Michael O'Loghlen); the Solicitor was ordered to produce deeds upon which he claimed a lien, at the instance of a party whose rights were paramount to those of the client. The cases of Plumptre v. O'Dell (f), and Hutchinson v. Joyce (g), are authorities to the same effect. There are several cases at law in which the same has been affirmed; Lord Buckhurst'scase (h); Atkinson v. Baker (i); Holies v. Claridge (k); Hooper v. Ramsbottom (l); Phillips v. Robinson (a); Harrington v. Price (b); Lightfoot v. Keene (c). These cases establish, that no right is gained at law against the owner of the estate by the transfer of the deeds; and the cases in equity show, that in decreeing a sale, the Court regards the rights of the party at whose instance the sale was obtained, and will not allow the lien which the Solicitor acquires against the inheritor, to prevail against an encumbrancer. The production of the deeds therefore was a necessary consequence of the rights of the plaintiff, and the benefit arising from that production enures to the creditors who came in and proved under the decree. The administration of the estate is undertaken for the benefit of the plaintiff in the cause, but it is prosecuted by the Court for the benefit of the creditors, and they are entitled to have the dominion of the plaintiff moulded for their benefit. A creditor can obtain the carriage of the decree, he can appear at the final hearing, he can appeal,—showing that after a decree to account, the plaintiff in the suit is but a trustee for the creditors. The order of the 27th of June 1833, it is true, reserves the Solicitor's lien, if any he had; the meaning of it is, that if he should ultimately establish that he had a lien, the mere delivery of the deeds should not prevent him from showing it. But the authorities before referred to show, that the production of the deeds could not be resisted; and it is clear that after that production the lien was at an end. That results from the very nature of lien, which is but a right to withhold the possession of the thing on which it attaches, until the demand of the party who withholds it is satisfied; Bozon v. Bolland (d). That doctrine has accordingly been acted on at law to the fullest extent in Jacobs v. Latour (e), and Clarke v. Gilbert (f). But supposing that the deeds still continued in the possession of Maxwell, how could he have any lien upon them against the judgment creditor for costs incurred subsequently to the entry of the judgment? The judgment creditor's interest in the lands depends on the Statute of Westminster (13 Edw. 1, c. 18); Neate v. Duke of Marlborough (g). Under that statute, his title relates back to the judgment, and he has an estate in the land quousque, until his debt is paid. The incidents of that estate are, that he can eject if his debtor had a legal freehold; Doe v. Helder (h): he can distrain and avow as the owner of the rent and reversion; Rogers v. Pitcher (i). If the title of the debtor be equitable, he can in this Court obtain a receiver, independently of the recent Acts in this country; Lewis v. Lord Zouehe (a); Lord Dillon v. Plasket (b). In Finch v. Lord Winchelsea (c) Lord Cowper held that an agreement for a conveyance entered into for a greatly inadequate consideration should not stand against a judgment creditor. The judgment creditor after the death of the conuzor is entitled in this Court to a sale of a moiety of the dèbtor's lands; Stileman v. Ashdown (d): and when the bill is filed by him on behalf of all the other judgment creditors, he is entitled to a sale of the entire; O'Gorman v. Comyn (e). What, on the other hand, are the rights of the Solicitor under his lien on the deeds? The lien gives him no right which he can enforce actively; Bozon v. Bolland (f). It is lower than an equitable mortgage, because he cannot compel a sale of the estate for satisfaction of his debt, as an equitable mortgagee can. But suppose that the deposit of the deeds with him were equivalent to an equitable mortgage, then it could only extend to the amount due when the deeds were given to him; for an equitable mortgage by deposit cannot be extended to subsequent advances, without a distinct agreement to that effect. But a Solicitor cannot take a security for subsequent costs; Jones v. Tripp (g); Pitcher v. Rigby (h). So that if there had been actually an equitable mortgage of the estate by depositing the deeds with the Solicitor as a security, he would not have been entitled to the benefit of it against the client; and yet it is sought by means of his lien to enforce payment of those costs against a creditor whose right accrued before they were incurred. Even where there is an...