l'ATBICK V. LEACH.
whether thereby, and the distribution of the notes among the oreditors, Rummell intended to cover up and give color to a transaction not originally intended. The large amount of property conveyed by the mortgage to secure a comparatively small is not itself a fraud; but such an act of oonveying all his stock in trade, in face of the indisputable fact that he had sufficient notes and accounts by which he could have secured Huiscamp without making the mortgage, deserves your closest scrutiny for the purpose of arriving at the intention of Rummell in making the mortgage. If the mortgage was made by Rummell to prevent, hinder, or delay the creditors of Rummell & Son from collecting their debts, you should find the issue for the plaintiff. It was not ' for Rummell to determine that the firm of Rummell & Son did not owe the Moline Wagon Company, and therefore take steps to prevent, hinder, and delay them in the collection of their debt, if they had any against the firm; and if you shall find from the evidence that the object of the mortgage was to prevent, hinder, or delay them in the collection of any claim they might have against the firm, the law declares such acts fraudulent. In this case you may well see whether the maxim "acts speak louder than words" applies. As a matter of course, the explanation given by the parties of and about their acts is to be considered by you in the examination of the testimony. With the troubles between the partners we have nothing whatever to do; and such testimony in relation thereto as was allowed to'be given was for the purpose only that you might be the better able to judge of the weight to be given to the testimony of Rummell and Cutler.
(Oircllit Oourt, D. Nebraska.
Under the statutes of Nehraska an attorney has no lien on the judgment obtained by him, in favor of his client, which he can enforce against a third party; and to secure the lien given on the papers of his client in his possession, or upon the money in his hands belonging to his client, or upon money in the of a third party, in an action or proceeding in which he wa/il employed, as given by the statute. he must give personal notice in writing,
Tohn C, Cowan and John D. Howe, for petitioners. J. M. Woolworth, contra.
MCCRARY, C. J. It seems to me doubtful whether the statute of Nebraska relied upon by the petitioners applies to the case in hand. That statute is as follows:
"An attorney has a lien for a general balance of compensation upon any papers of his client which have come into his possession in the course of his professional employment; upon money in his hands belonging to his cliEnt. and in the hands of the adverse party, in an action or proceeding in which the attorney was employed, from the time of giving notice of the lien to that party."
The petitioners are attorneys at law, and cla,im a lien upon a certain judgment obtained by them in one of the courts of the state of Nebraska against the plaintiff herein. It will be seen that the above-quoted statute gives an attorney a lien upon-First, "any papers of his client which have come into his possession in the course of his professional employment;" second, "upon money in his hands belonging to his client;" and, third, "upon money in the hands of an adverse party in an action or proceeding in which the attorney was employed." Of course, a judgment obtained by the attorney cannot be said to be a paper of his client which has come into his possession, nor money in his hands belonging to his client. Is it money "in the hands of an adverse party in an action or proceeding in which the attorney was employed?" I think not. It is a. judgment; that is to say, the judicial determination upon the issues of law and fact, of a court of competent jurisdiction, that a sum of money is due from the defendant to the plaintiff. This is not money in the hands of the d.efendant. A judgment creditor may have the right to seize upon execution any money in the hands of his judgment debtor, but this does not make it the money of such creditor before seizure. If petitioners have no lien under the statute they have no lien at all, for it is well settled that at common law an attorney has no lien for his disbursements or fees upon a judgment obtained by him. Baker v. Orook, 11 Mass. 235; Hill v. Brinkley, 10 Ind. 102. In some of the states-as, for example, in Iowa-there are statutes giving the attorney a lien upon the money due his client from the adverse party in the litigation, but the statute of Nebraska. above quoted contains no words which can be construed as giving such a. lien. If, however, I am wrong upon this proposition, I am very clearly of the opinion that no lien has been established in this case, fO,r .the reason that no sufficient notice was given under the provisions of the
A.LLEGHENY NA.T. BANK OF PITTSBURGH V. HAYS.
statute, assuming that it was applicable. The notice provided for is nndoubtedly personal notice, and I think very clearly it should be in writing. This would be so upon general principles, and I. think also under the provisions of section 627 of the General Statutes of Nebraska" which provides that "the service of a notice shall be m!,lide as is required by law for the service of a summgns." For these reasons I am constrained to that the petitioners have no lien upon the judgment mentioned in the pleadings, and that their a.pplication to be made parties must be overruled.
See In Te Wilson &; (JreiU, ante, 235.
ALLEGHENY NAT. BANE OJ1 PITTSBURGH 11.
(Circuit Court, W. D. Pennsylvania. July 15, 1882.)
1. WILIr-LEGAOIES-L'HARGE ON REALTY.
Where the share in real estate devised to defendant was expressly subjected by the will to the payment of capital in a firm, the administrator cum testaanneaw is entitled to the fund arising from the sale of such share.
Where a testator, without creating an express trust to pay legacies, makes a general residuary disposit.ion of his whole estate, blending the realty and personalty in one fund, the real estate is constructively charged with the legacies. 3.
SAME-RIGHTS 01' LEGATEES.
Where the real estate of decedent, charged with payment of the legacies, had been partitioned among the devisees, the legatees not being parties to the partition, and never acceding to any apportionment of the legacies, they are not 'eStopped from asserting their paramount lien against a fund arising from a judicial sale of a portion of the realty.
Bur exceptions to auditor's report distributing the proceeds of execution. Geo. Bhiras, Jr., for exceptants. John Dalzell and B. A. McClung, for report. ACHESON, D. J. The fund for distribution arises from the sale of real estate sold by the marshal as the property of William B. Hays, Jr., under a lev.fa. upon a. judgment Bur mortgage given by the defendant to the plaintiff. The property is part of the residuary estate devised by the will of William B. Hays, Sr., deceased, to his five children, of whom the defendant is one. Curtis, another son and conveyed his share to the defendant, and the pal,ties subse-