Judges: Maltbie, Hinman, Avery, Brown, Jennings
Filed Date: 12/9/1937
Status: Precedential
Modified Date: 10/19/2024
This action was originally brought by William E. Hagearty, as plaintiff, against the defendants Burns, Ryan and Levantine, under General Statutes, 5035, to remove a cloud from the title of certain real estate which the plaintiff claimed to own in Hartford. Burns was dropped as a defendant after the institution of the action; and, after the service of the writ, the New England Brewing Company was joined as a party plaintiff. The real controversy was between that plaintiff and the defendant Ryan, the defendant Levantine having failed to appear at the trial.
The essential facts as found by the court are as follows: On July 29th, 1933, The Newland Corporation was the owner of certain premises in Hartford upon which there was a mortgage owned by Howard W. Gault, for $50,000; and, on that day, receivers were appointed for the corporation in actions brought in the United States District Court. Receivers' certificates were issued in various amounts to Joseph DeMarco for moneys loaned by him to the receivers. The appellant is an attorney at law and between August 24th, 1934, and January 31st, 1936, he rendered professional services to DeMarco in establishing the priority of the lien of the certificates upon the premises; and decrees were entered in the United States District Court, upon proceedings instituted by that defendant on behalf of DeMarco, establishing that certain of these receivers' certificates were liens upon the land prior to all others except taxes and that certain other of the certificates were liens upon the land prior to all others except taxes and the first mortgage owned by Gault. The owner of the mortgage brought foreclosure and secured final judgment on *Page 374 February 8th, 1936. In this judgment the receivers' certificates owned by DeMarco were given priority in accordance with the decrees theretofore entered in the United States District Court. On February 19th, 1936, the defendant Ryan caused copies of the two decrees of the United States District Court establishing the priorities of the receivers' certificates owned by DeMarco to be recorded in the land records of Hartford; and, on the same day, he caused to be recorded in the land records a notice that he claimed a lien upon the certificates and upon the premises for his legal services. After title had passed in the foreclosure proceeding the premises were conveyed to the plaintiff William E. Hagearty; on or about January 31st, 1936, DeMarco's certificates were purchased and paid for; on February 29th DeMarco quitclaimed his interest in the premises to Hagearty; and on April 23d 1936, Hagearty conveyed the premises by warranty deed to the plaintiff the New England Brewing Company.
The questions involved in this appeal are whether the caveat filed by Ryan constituted notice of such an equitable interest in land as might be recorded under General Statutes, 5016, and whether the action could be prosecuted by the original plaintiff whose interest in the land had been sold to the New England Brewing Company after the service of the writ, or by the latter company which had no interest at the time the action was instituted.
It is a well established principle that an attorney at law who prosecutes an action on behalf of a client involving the title to or possession of real estate does not, in the absence of a special agreement, acquire a right of lien upon the real estate in dispute for his services unless given such right by statute. Goodrich v. McDonald,
The writ in this action was served and the case returned to court on the first Tuesday of April, 1936, and it appears that on April 23d 1936, the plaintiff William E. Hagearty conveyed the premises to the New England Brewing Company which was thereafter made a party plaintiff by motion. Subsequently the defendant filed a demurrer to the complaint stating that the New England Brewing Company could not maintain the suit as it was not an owner of the property at the time the suit was instituted, and that the plaintiff William E. Hagearty could not maintain the suit in that it appeared from the complaint that he had sold his interest. This contention is without merit. At common law the rule was that upon the assignment by a sole plaintiff of his entire interest in the subject-matter of the action, his cause of action ceased to exist. Lee v. Jilson,
Moreover, one purpose of the Practice Act was to avoid unnecessary litigation. Hubley Mfg. Supply Co. v. Ives,
There is no error.
In this opinion the other judges concurred.
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