Middlecoff v. Durnal

BARNARD, P. J.

On November 18, 1922, the plaintiff entered into a written contract with one J. J. Kelly, providing in part as follows:

“Whereas said Kelly has heretofore purchased several pieces of land at tax sales, and desires said Middlecoff to render certain services as an attorney at law to perfect the

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title to said lands, now it is agreed that said Middleeoff will render the necessary legal services to determine the title to said lands, and in cases where Kelly is declared by judgment or by compromise to be the owner, then said Kelly shall have his money invested back, and the overplus of the land shall be divided equally between them, ...”

On November 27, 1922, the plaintiff herein filed a suit for Kelly, entitled

Kelly

v.

Smith,

seeking to quiet title to a number of lots, including those here in question. Upon a second trial of this action Kelly discharged Middleeoff and secured other counsel. About the same time, and on February 11, 1924, Middleeoff filed a complaint in intervention in the case of

Kelly

v.

Smith,

asking that upon entry of judgment he be declared the owner of an undivided one-half interest in the property. The original holders of title to the property had defaulted and the suit referred to was being defended by a corporation claiming to have a lien thereon. The claim of this corporation was compromised and on April 18, 1925, a deed was executed by the corporation conveying to Kelly the three lots involved in the action now before us. On April 25, 1925, Kelly deeded these three lots to lone Kelly, his wife. On May 4, 1925, a judgment was entered in the case of

Kelly

v.

Smith,

quieting Kelly’s title to these three lots. Thereafter, a new trial as to the interest of Middleeoff, as intervener, was granted, it being later held that his attempt to establish an interest in the property through his complaint in intervention was premature. (K