[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 427 In our view of this case it is unnecessary to determine whether the defendant had either a general equitable lien or a specific attorney's lien upon the lands described in the complaint. Any lien he may have had was expressly waived by his declaration of trust in which he says: "I hold said property for the purposes expressed in said judgment, and in no other way;" and by the explicit provisions of which he binds himself "to convey the same to such person as said Stephen A. West may in writing direct, and to pay over the proceeds of such sale to said Stephen A. West."
The learned Appellate Division took the view that these words could not be construed as a waiver of defendant's lien, and should be held to mean nothing more than that he took the title as the nominee of the plaintiff, subject to the terms of the judgment in the suit of West v. Bush. We find ourselves unable to concur in this view.
It is to be remembered that the defendant, before he became plaintiff's trustee, had been his attorney in the suit out of which the subject of the trust arose. While sustaining that intimate and confidential relation to the plaintiff he assumed the trust under which he now holds the property in suit. In assuming this trust the defendant, with full knowledge of his legal rights, and with presumptive knowledge of the effect of his acts, made a formal and most explicit declaration of trust, in which the statement that he holds the property for the purposes expressed in the judgment therein described is emphasized by the declaration that he holds the same "in no other way." This is followed by the equally unequivocal statement that upon the conveyance of said premises to such person as said West may in writing direct, he, the trustee, will "pay over the proceeds ofsuch sale to said Stephen A. West." *Page 429
It is said that any construction of this language which attributes to the defendant an intention to waive his lien is forced and unnatural. We think that any other construction would be repugnant to the plain meaning of the words used. We find it difficult, indeed, to discuss at length a proposition so obvious and in such exact accord with the principles applicable to the subject of waiver. We think it was error to allow the defendant any sum whatever for his services as attorney, and that his recovery should have been limited to the allowance made to him as trustee which, for apparent reasons, rests upon an entirely different basis than his compensation as attorney.
The judgment of the court below should be modified by deducting therefrom the sum of $450.00 in addition to the $50.00 deducted by the Appellate Division, and as thus modified affirmed, without costs to either party.
GRAY, O'BRIEN, HAIGHT, LANDON and CULLEN, JJ., concur; PARKER, Ch. J., dissents.
Judgment accordingly.