NAT. BANK OF WINTERSET V. EYRE.
NAT. BANK OF WINTERSET 'V. EYRE and
(Circuit Oourt, D. IO'UJa. July 16, 1881.)
L SET-OJ'1I'8-ATTORNEYB'LIENs-JUDGMENTB. An attorney's lien upon a judgment is subject to any existing right of in the other party to the Buit.
In Equity. On the thirtieth of April, 1880, complainant recovered a judgment 10 the circuit court of Madison county, Iowa, against respondent Robert Eyre; for the sum of $2,877. On the twenty-first of October, 1880, the said respondent Robert Eyre recovered judgment in this court against complainant for the sum of $287.12. On the first of November, Wainwright & Miller, attorneys for Robert Eyre, filed their notice under the statute, claiming an attorney's lien upon the last-named judgment for the full amount thereof. Execution having been issued upon the last-named judgment, complainant files this bill alleging the foregoing facts, and prays that proceedings under the same be enjoined; and that the right of set-off be decreed. Respondents demurto the bill. McOaughan, Dabney ct McCaughan, for complainant. Parsons ct Runnells and Wainwright ct Miller, for respondents. MCCRARY, C. J. The right of set-off exists under the statute unless it is defeated by the attorneys' lien, claimed by Wainwright & Miller. Code of Iowa, 1873, § 3097. The statute is declaratory of the common law and of the general principle of equity, according to which mutual judgments will generally be set off the one against the other. 2 Eq. Jur. § 1437. Before the respondent EYcl'e obtained his judgment against the bank he was indebted to the bank on a judgment of over $2;800. The bank pleaded this judgment as a set-off against his claim in the suit of Eyre against the bank 'in this court, but a demurrer to that p,art of the answer was sustained, upon the ground that mutual judgments are to be set off the one against the other after their rendition. Can the right of set·off be defeated by the filing of an attorney's lien? I think not. If Eyre had assigned his entire claim before judgment to Wainwright & Miller, and they had sued on it, I think it clear that the assignment would have been subject to the set-off previously held by the bank. The claim was not negotiable, and the assignees would have taken it subject to any defence existing in the hands of the bank. Surely no greater right can be acquired by the filing of an attorneys' lien than would have resulted from such an assignment. I think the weight
of authority, as well as the better reason, supports the rule that the lien of the. attorney is upon the interest of his client in the judgment, and is subject to an existing right of set.off in the other party. Gager v. Watson, 11 Conn. 168; Ex parte Lehman, 5.9 Ala. 631; Wright v. Treadwell, 14 Texas, 255; Currier v. Ra·il1'Oad C;".37 N. H. 223; Mohawk Bank v. Burrows, 6 Johns. Ch. 317; Porterv. Lane, 8 Johns. 277; Nicoll v. Nicoll, 16 Wend. 445; Hltrst v. Sheets, 21 Iowa, 501. The demurrer to bill is overruled, and unless respon4ents wish to answer there will be decree in accordance with the prayer of the bill.
(CirC'Uit Court, W. D. Pennsylvania. July 31, 1881.)
In an action brought by a subsequent purchaser for the recovery ot land, Md, that a prior purchaser is estopped from asserting his title, where,to the inquiry of such subsequent purchaser, whom he knew to be bargaining with the original owner for its purchase, he denies all interest in it. IIeld, also. that a judgment creditor of the prior purchaser, who urged such s·ubsequent purchaser to purchase, stating that the title was clear, was also estopped.
In pursuance of written stipulation this case was tried by the court without the intervention of a jury. The following facts are, therefore, found by the court
(1) The plaintiff and the defendants in this case, respectively, claim title to the land in controversy through and under Jake Hill, who became seized thereof in fee-simple prior to October 31. 1867. (2) By deed, dated and acknowledged October 31, 1867, Jake Hill sold and conveyed the land in controversy to Henry Metzger. On or about its date this deed was delivered by Hill to Meb:ger, but by agreement between them it was withheld from record. Said deed was not recorded until June 8, 1876; and then without the consent or knowledge of either of the parties to it. It was recorded at the instance of some unknown person who had obtained pos. session of it. (3) The land in controversy is the undivided one-eighth part of certain tracts of timber land (described in the record in this case) situate in Jefferson county, Pennsylvania. The other owners of said lands were E. G. Carrier and S. S. Jackson. From the date of his deed from Hill down until the summer of 1872 he (Metzger) and his said co-tenants, E. G. Carrier and S. S. Jackson, were engaged in the business of "lumbering,"-running lumber 'Oia the Allegheny river to the Pittsburgh market,-and, in the prosecution of this busi· ness, Carrier and Jackson cut and removed timber from said tracts of land. A.t the time of the sale and conveyance to Alexander Smith, hereinafter men·