Samuel Freeman Miller

“ We have the deposition of three witnesses, and three only, who knew and could tell the facts on which the lien of McPherson must rest, if it exist at all. These are the complainant, the defendant, and Carlisle, the law-partner of defendant, and interested with him in the lien asserted.
In regard to the facts which are relied on to create the lien there does not seem to be much, if any, difference in the statements of the parties. It is only when they come to the amount that these difference are irreconcilable. ”

“ We have decided in the case of Paschal (10 Wall. 483) , that an attorney has a lien by law, under circumstances similar to these, for all that is due him as attorney or counsellor, on the papers of his client in his hands.
McPherson has done nothing to waive or defeat this lien. He might very well have insisted, when the square was sold to Holden & Co., that the fee should then have been paid or secured to him out of the purchase-money. But he accepted possession of the bond as a concession to his client. He continured her counsellor all through the transaction. ”

“ The first is, that the amount is so large in proportion to the services rendered, and the promisor being a woman without other advice when she entered into the contract, that a court of equity should hold it void, as an unjust extortion from an unprotected female. ”

“ Denies that he ever received any money from her to pay for insurance, or any notice to sell for non-payment of interest or taxes. Denies any hostile purpose towards complainant, and any act or intent inconsistent with his duty as trustee. He admits that he does assert a claim for $5,000 due to the partnership firm of Carlisle & McPherson, for services as attorneys and counsellors, in regard to this same property, and for which he claimed, and now asserts in this answer, a lien on the bond, and a right to hold it until that sum is paid. ”

“ It is beyond dispute, therefore, that the pleadings put in issue the existence of the lien and the amount of that lien for which McPherson can hold the bond. The testimony taken is also mainly devoted to those points. The issue is fairly made. What could be more pertinent to the relief sought, and to the defence against it, than both these issue? It is clear that the bond belongs rightfully to Mrs. Cox. If there is no such lien, she is entitled absolutely to the relief she asked ”

“ The removal of a trustee, at the request of the cestui que trust, and the appointment of another person to sell the lands conveyed by the deed, is matter of discretion for the court, and will be ordered when good cause is shown. ”

“ That it be declared that complainant is entitled to the possession of the bond of Holden, King, and Ford, on payment to McPherson of the sum of $5,000, for which he rightfully holds said bond as security for his services to complainant as her attorney and counsel. And that McPherson have liberty, if he be so advised, to file a cross-bill for the establishment of his debt and his lien, and for such remedy for its enforcement as equity can give in the case. ”

“ Cox, from the lien of the deed of trust, by giving her $13,000 in those notes as payment on the bond, and paying her in cash $4,000, the proceeds of the other notes given in the same transaction. In the deeds of trust given by Pike on those lots to secure said notes McPherson and Wilson were made trustees, and they had been in the deed from which they were released; but, though the original bond remained through all these transactions with McPherson, the money and the notes arising from this last sale were handed over to complainant. ”

“ Where a trustee is charged with an active trust, which gives him some discretionary power over the rights of the cestui que trust, and which brings him into constant personal intercourse with the latter, it may be conceded that the mere existence of strong mutual ill-felling between the parties will, under some circumstances, justify a change by the court. But there is here no such case. McPherson will have and can have, nothing to do as trustee which requires any personal intercourse with Mrs. ”

“ It is proper to say in this connection that the testimony wholly fails to show the payment of $150, or any other sum, to defendant, to be used in paying for insurance. We may also add, that there is not the slightest evidence that defendant concealed from the complainant, or in any manner misled her in the transaction, by which she released the lots mentioned, and received other security for such release. ”

“ The following authorities support this view of the matter: Forster v. Davies, 4 De G., F. & J. 133; Gibbes v. Smith, 2 Rich. (S.C..) Eq. 131; Berry v. Williamson, 11 B. Mon. (Ky.) 245; Perry, Trusts, sect. ”