ber 25th the following declaration of trust was executed by Lord and Miller, showing the purposes of the deed and bill of sale, to wit: "This is to certify that for and in consideration of a certain warranty deed and bill of sale placed upon record in the recorder's office of Multnomah county upon the 23rd day of November, A. D. 1892, wherein Joseph Miller is grantor, and Chas. F. Lord is grantee, and of a certificate of deposit for $300, and of a certain promissory note for $282.60, sold, delivered, and indorsed by said Miller to said Lord for one dollar, and other valuable consideration, the said Lord agrees to defend the said Miller in all or any suits or actions which may be brought against said Miller, and to make disposition of such remainder of said property as said Lord and Miller shall agree." On December 9th, Miller, for the purpose of securing to the firm of McGinn, Sears & Simon their fee of $1,000, then agreed upon for defending him in said criminal matters, executed and delivered to the defendant H. E McGinn a mortgage upon the land described in the deed to Lord; but, this security not being satisfactory to the firm, Miller afterwards, upon the same day, executed to Charles F. Lord another deed of general warranty, covering the same premises, which recites a consideration of $2,000, and thereupon Lord executed and delivered to N. D. Simon his note for $1,000, and mortgage upon said premises to secure the same. Both the mortgage to McGinn and the one to Simon were made to secure the same liability. During the course of these negotiations the defendant Mays was employed as counsel to assist in Miller's defense. On December 16th, Lord, by deed of general warranty, excepting only the mortgage to Simon, conveyed the premises to Mays, the deed reciting a consideration of $2,000. And on April 26, 1893, Mays and wife mortgaged the property for $1,800 to the defendant W. H. Fowler. This suit was instituted May 20, 1893, and plaintiff seeks thereby to have all these conveyances and mortgages set aside. Fowler, although made a party to the suit, was not served, and did not appear in person or otherwise. The decree being in part adverse to the defendants Lord and Mays, they come to this court by separate appeals; but Lord filed no brief, and did not appear either in person or by attorney at the argument of the cause. The plaintiff took a cross appeal as to Lord and Mays only.

The first question made here, and upon which the main controversy hinges, is upon the finding of the court below "that both said deeds of conveyance from Miller to Lord, and Lord's deed of conveyance to Mays, were intended by all the parties to convey the legal title to said property in trust for said Miller, and that said legal title was taken under said conveyance, and held in trust for said Miller, and the same is now held in trust for said Miller by said Mays." It is claimed

this finding is not supported by the evidence. Let us examine first the testimony touching the execution of the Miller deeds. The declaration of trust, which is signed by both Lord and Miller, clearly establishes the nature of the first deed to Lord. The effect of the bill of sale and that deed, when construed in connection with the declaration, was to impress the property therein described, in the hands of Lord, with a trust for certain purposes-First, to pay said Lord for his services "in all or any suits or actions which may be brought against said Miller"; and, second, "to make disposition of such remainder of said property as said Lord and Miller shall agree." At the date of this transaction there had been no understanding or agreement with Miller as to the amount of Lord's fees for the services agreed to be performed. Now as to the subsequent deed. Lord testifies that: "Afterwards he [Miller] made the statement to me that he was willing to pay me as much as he would pay Mr. McGinn,-as much as he had talked of paying Mr. McGinn. I then asked him what that was,-not knowing definitely at the time, and he told me a thousand dollars. Then I asked him, in case we engaged Mr. Mays as an attorney to assist in the trial of the cases, said I presumed he would expect to receive the same amount as he had agreed to pay myself, which he assented to. And I think on that day-that I should judge to be the 23d or 24th of November, in that neighborhood-he authorized me to employ Mr. Mays, and I did so; informing Mr. Mays that Mr. Miller had agreed, as with me, to pay, the sum of one thousand dollars,-one thousand dollars to Mr. Mays, and one thousand to myself, one thousand to each,-and we were to look after him in all the cases, either civil or criminal, and also after his own matters. After these arrangements were made, and I had this understanding with Mr. Miller, and had employed Mr. Mays, some time along the 1st of December, possibly the first week, Mr. Miller told me he desired to engage further counsel, and that he had talked with Mr. McGinn, and he thought McGinn would probably act as one of his counsel in his cases, as well as myself and Mr. Mays. Some time, I think about the 8th, possibly, of December, 1892, Mr. Miller told me he had engaged Mr. McGinn at the same figure, -that is, he had agreed to give him the same amount that he was to pay Mr. Mays and myself, and he desired me to make out a mortgage to Mr. McGinn to secure his fee. I told him then that I did not desire to give a mortgage upon the property, in the condition in which I held it, because I simply held the property as a mortgagee, and not in fee. He said he would see Mr. Simon about that, but Mr. Simon wanted a mortgage, and I should have to give him one. I think the next day, any way the 9th of December, I came to the courthouse, and

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Mr. Miller said Mr. Simon had been there, and was waiting for me upstairs, if I recall. I talked with Mr. Miller, and he stated that he wanted me to give the mortgage to McGinn that day, and Mr. Simon was waiting upstairs, and would see me about it. I came upstairs and Mr. Simonby the way, before coming upstairs I spoke to him again about making the deed, that I did not care to give it, in the present shape in which the property was. He says, 'Well, I will sign a deed, and you can then give a mortgage.' I came upstairs, and the deed was drawn up. # * The second deed was an absolute deed to the property. I came upstairs, and I think Mr. Simon and I met in the law library, and the deed was drawn up there. Mr. Simon went below, and came back, and returned with the deed properly signed and witnessed. The mortgage was then drawn up in the law library, I think, and I signed the mortgage and executed it, and also the promissory note for one thousand dollars, after the deed had been made by Mr. Miller to myself, absolutely deeding the property to In the afternoon, when I went down to the jail, Miller informed me that Simon was waiting for me above, to draw up the absolute deed to the property. I then explained to him that the agreement which had been entered into between us only related to the first deed, and would be inoperative so far as the second deed was concerned, and that he would either destroy the instrument, or hand it back to me. I don't recollect whether he said he had destroyed it, or that he would hand it to me the next morning, but it was understood between us that he should either return it or destroy it; and I presumed, until I had been otherwise informed, that it --had been destroyed.

me.

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There was

The amount was understood thoroughly by Mr. Miller that you [Mays] was to receive for your services in the cases which came up the sum of $1,000, and that sum and fee should be paid out of the property." On cross-examination the following testimony was elicited: "Ques. Now, the only reason you give for changing this deed which enables you to hold the title in trust for Miller, of the 23d of November, 1892, to what you say was an absolute deed on the 9th of December, 1892, was the requirement on the part of McGinn, Sears & Simon that they

should have a mortgage on the property to secure their fee of a thousand dollars? That was the only reason for it? Ans. That is the only reason there was for it; yes, sir. Ques. And so you informed Miller of that fact, that you wanted an absolute deed because McGinn, Sears & Simon wanted a mortgage, and he thereupon gave you this absolute deed? Ans. Yes, sir. Ques. And that is all there was of it? Ans. And that is all there was of it."

In this connection, Simon's testimony shows that the McGinn mortgage was given in the morning. This not being satisfactory, because the legal title was in Miller, it was arranged that Miller should execute to Lord a second deed, and then that Lord should execute a mortgage to Simon, and this was accordingly done the same day; Lord executing the note for $1,000, which the mortgage was given to secure,-Simon writing out the second deed himself. Lord admits that he realized $585.60 out of the personal property which he had acquired under the bill of sale. From this testimony we are to deduce the object and purpose of the second deed, it being substantially all that was offered bearing upon the subject, except as the testimony adduced touching the value of the land may affect it. The court below found, from the testimony of a multitude of witnesses called upon that question, that its value at the time these deeds and mortgages were executed was $5,000, and this finding we are not inclined to disturb. Miller was not called as a witness. A corollory is that, whatever might have been the effect of the first deed to Lord, the second was intended by the parties to be, and was in fact, an absolute deed, and was given for the purpose of cutting out any trust in favor of Miller. It was evidently intended that the legal title should pass by the second deed, if it still rested with Miller at the time of its execution, as its purpose was to so invest Lord with such title as that he could execute a valid mortgage upon the premises to Simon. Lord says Miller deeded the property absolutely, for the purpose of securing his fees and paying other counsel who had been retained, but afterwards declared the purpose was not to secure, but to pay, his fees. Subsequently, but in the same connection, he says it was thoroughly understood that Mays' fee should be paid out of the property. Upon cross-examination he testifies that the only reason he had for taking another deed was to enable him to mortgage the property to secure McGinn, Sears & Simon, he believing that the former deed was in effect but a mortgage, and that he was therefore without authority to execute the desired mortgage. And yet he says, "There was no understanding between myself and Miller subsequently, or at the time of making the second deed, that he [Miller] should have any interest whatever in the real property, the personal matter remaining as it was in the beginning." This testimony is somewhat in

definite and unsatisfactory, and does not disclose a transaction wherein all the terms and conditions were distinctly understood and defined. Especially is this true as it concerns the consideration to support the deed. But it may be now asserted, as a rule of law, that where a deed is perfectly executed, and is intended to operate at once, no trust will result merely from the want of consideration, unless the attendant circumstances show that it was not intended the grantee should take beneficially. 10 Am. & Eng. Enc. Law, 56; Philbrook v. Delano, 29 Me. 410. If the consideration is inadequate, the rule would undoubtedly apply with equal force. The "attendant circumstances" in the case at bar, othther than those related, may be briefly stated: Miller was under arrest for a grave offense, then thought to be more serious than it afterwards proved to be, he being apprehensive that Morrell would die of the wound received at his hands. He had incurred a civil liability to Morrell because of the assault made upon him, and had previously transferred all of his property, of the aggregate value of $5,585.60, to Lord, for the purpose of securing his fees for services as an attorney, with a declaration of trust that the balance should be disposed of as he and Lord should agree. At the time of the execution of these deeds, Morrell was a crèditor of Miller, under Philbrick v. O'Connor, 15 Or. 15, 13 Pac. 612. This being so, the plaintiff claims that the latter deed was fraudulent as to him, as well as the first. There are some attendant indicia of fraud, such as the transfer of all of Miller's property of such considerable value to Lord, the declaration of a secret trust in connection therewith, and the inadequacy of consideration for the second deed. But, upon the other hand, Miller was deeply interested. He Iwas in the toils of the law, charged with a grave offense, and his object was to extricate himself therefrom. The purpose of making such use of his property as to secure able counsel to conduct his defense, and to attend to other apprehended litigation, was perfectly legitimate. His right to be heard by counsel is a constitutional right, and he should be permitted, unless hindered by legal process, the free and untrammeled use of his property to obtain legal assistance; otherwise constitutional privileges would be invaded. Upon the whole, we believe the second deed was intended, and so operated, as an absolute conveyance of the title to said premises, and we are unable to say from the evidence that it is fraudulent and void as to creditors. But the transaction is attended with such suspicious circumstances that we ought not to permit the conveyance to stand, except as security for such liability as Miller legitimately incurred to meet the expenses of impending litigation, under the doctrine laid down by Chancellor Kent in Boyd v. Dunlap, 1 Johns. Ch. 478: "When a deed is sought to be set aside as voluntary and fraudulent against creditors, and there is not sufficient evidence

of fraud to induce the court to avoid it absolutely, but there are suspicious circumstances as to the adequacy of consideration and fairness of the transaction, the court will not set aside the conveyance altogether, but permit it to stand for the sum already paid." This doctrine has been followed in Crawford v. Beard, 12 Or. 447, 8 Pac. 537, and Philbrick v. O'Connor, supra, and applied by Deady, J., in U. S. v. Griswold, 7 Sawy. 308, 8 Fed. 496; yet the application of this doctrine here must depend upon whether Mays afterwards purchased the premises in good faith, for a valuable consideration, and without notice of the infirmities of title, as, if he did so purchase, he cannot be deprived of the benefits secured by his deed from Lord. With

out going into the evidence upon this subject, it is sufficient to say that because of the fact that Lord arranged with Miller for the amount, manner of payment, and security of Mays' fee, and considering the nature of Lord's and Mays' employment, we have concluded that Mays is chargeable with constructive notice, at least, of the nature of the title which Lord possessed, and therefore took subject to whatever claim plaintiff may have had upon the premises.

As to the fees which Lord and Mays were to receive for their services in the defense of Miller in the criminal and civil actions in which he became involved, while they were large, and ordinarily would, perhaps, be deemed excessive, yet we cannot say that they were extortionate and unconscionable. There is no doubt that the evidence of Lord and Mays, against which there is no contradiction, establishes an express contract with Miller whereby he agreed to pay each of them $1,000 for their services. At the time this agreement was entered into, it was thought that Miller would ultimately be charged with murder in the first degree, but, as it turned out, his victim survived; and three indictments were returned against him,-one for an assault with intent to kill, and two for assault with a dangerous weapon. A trial was had upon two of these indictments. In one there was a mistrial, and a second trial was had. As to the third, Miller pleaded guilty. Mays and Lord appeared, and assisted in the defense, at each of those trials. Prior thereto they, in connection with the firm of McGinn, Sears & Simon, instituted a habeas corpus proceeding for the purpose of having the defendant admitted to bail, in which they were successful, and subsequently defended Miller at the trial of the civil action instituted against him to recover $20,000 damages, in which the judgment for $10,000 was secured which forms the basis of this suit. There being no evidence that these fees were purposely fixed at the amounts specified for the purpose of covering up Miller's property to render it inaccessible to his creditors, we cannot say that, because of the largeness thereof, the contract supporting them is void, and ought to be disregarded.

This suit compréhends two funds, and the fairness of the transaction by which Lord acquired them; one consisting of real property, the status of which we have determined, and the other of personal property, out of which Lord realized $585.60. The greater portion of this latter fund he had in his hands at the date of the commencement of this suit, so that he could not deal with it as to change its legal status to the detriment of plaintiff's rights during the pendency thereof. There is no doubt, under Lord's own showing, that he acquired and held this personal property in secret trust for Miller. The declaration of trust establishes that fact. This fund should not be blended or confused with the real property, as it is separate and distinct therefrom. Lord had expended some of it at the request of Miller, which may be regarded as legitimate, prior to the commencement of this suit. The exact amount we are unable to definitely determine, but it is within bounds to conclude that he had in his hands at that time at least $500, for which amount plaintiff should have a decree against him, as well as for his costs in the court below.

At the time of the institution of this suit the state had a judgment against Miller for costs in the criminal proceedings for $519, which, it is admitted by all concerned, was a first lien upon the real property. In part satisfaction of this lien, Lord paid in June, 1893, through Mays, $247, out of the fund arising from the personal property. An execution having been issued at the instance of the state, Mays, for the purpose of protecting his own lien, paid the balance of this judgment, amounting to $272. As to these respective amounts, plaintiff and Mays ought to be subrogated to the rights of the state. Aside from this, Mays paid $22.45 taxes upon the premises, which ought to be repaid. With the Fowler mortgage we have nothing to do, as he was not served, and made no appearance. Not having a day in court, his rights cannot be determined in this suit. In view of these considerations, the decree will be that the sale and assignment of personal property by Miller to Lord be set aside, and that plaintiff have a personal judgment against Lord for $500 and his costs in the court below; that the real property be sold, and the proceeds arising therefrom be applied -First, to the payment of $247 to plaintiff; second, to the payment of $272 to Mays, and the further sum of $22.45 taxes; third, to the payment of Simon's mortgage; fourth, to the payment of $1,000 to Mays; fifth, to the payment of $253 to plaintiff. and his said costs below; sixth, to the payment of $1,000 to Lord; and the balance, if any remain, to the satisfaction of plaintiff's judgment. Lord to have credit upon plaintiff's decree against him until satisfied for such sums as plaintiff may receive from the proceeds of the real property. Appellant Mays will have a decree here for his costs and disbursements upon the appeal.

(17 Mont. 461)

TWOHY v. BOARD OF COM'RS OF GRANITE COUNTY et al.

(Supreme Court of Montana. Jan. 27, 1896.) APPEAL FROM ALLOWANCE BY COUNTY COMMISSIONERS-WAIVER OF IRREGULARITY IN NOTICE.

1. Comp. Laws 1887, div. 5, § 764, requires, on appeal by a taxpayer from an allowance of a claim against the county by the board of commissioners, that a written notice be served on the county clerk by the sheriff within 30 days after the allowance, after which the clerk is required to transmit the proceedings to the district court. Held, that the clerk, by transmitting the proceedings, waives any informality, irregularity, or insufficiency of the service of notice. 2. Service of notice of the appeal on the person in whose favor the allowance was made is not necessary to give the district court jurisdiction of the appeal, though the court, after acquiring jurisdiction, should notify such person of the pendency of the case.

3. Such appeal may be taken from separate items of the allowance without taking an appeal from the whole allowance.

Appeal from district court, Granite county; F. H. Woody, Judge.

Appeal by W. S. Twohy from an allow ance by the board of county commissioners of Granite county in favor of John W. Morse. From a judgment of the district court dismissing the appeal, Twohy appeals. Reversed.

Smith & Word, for appellant. H. J. Haskell and W. B. Rodgers, for respondents.

PEMBERTON, C. J. On the 4th day of December, 1894, the respondent John W. Morse presented an account for the rent of house and lot against the county of Granite to the board of commissioners of the county for allowance. The account was for three items of $900 each, the last item being for $900 for rent of such house and lot from July 10, to October 10, 1894. All these items for rent were claimed to be due and payable quarterly, as per lease executed by said Morse to the county for said house and lot at a rental price of $3,600 per year. On the 6th day of December, 1894, the whole of said account, amounting to $2,700, was allowed and ordered paid by the board of commissioners. Within 30 days after the allowance of said account, the appellant, a taxpayer of said county, appealed from the decision of the board allowing the last $900 item thereof. The bill of exceptions in the record recites: "And the above named W. S. Twohy, appellant, being dissatisfied with the order of a said board of commissioners allowing said bill, served and filed upon the clerk of said board of commissioners and said respondent his notice of appeal from said order of allowance, which said notice, served and left with the clerk of the said board of commissioners, was in fact a copy of the original notice, and was served by the sheriff of Grauite county within 30 days after the allowance of said bill." The original notice of appeal was filed with the clerk of the district court of said county, by the sheriff, with his return there

on. The county clerk thereafter filed the account so allowed and ordered paid by the board with the clerk of the district court, together with the copy of the notice of appeal served on him by the sheriff, with the following return of the proceedings in the case before the board: "The above is a true copy or a bill, or bills, that was filed in this office on the 4th day of December, 1894, and allowed and ordered paid by the board of county commissioners of Granite county, Montana, on the 6th day of December, 1894." A copy of the notice of appeal was also served upon the respondent Morse by the sheriff. After the papers had been transmitted to the district court, the respondents moved the court to dismiss the appeal for the following reasons: "(1) That there is no proof of a written notice of appeal from the decision of said commissioners having been served upon the clerk of said board within 30 days after the making of such decision and allowance, or at any time, or at all. (2) That there is no proof of such notice having been served at any time upon the claimant, John W. Morse. (3) That no written notice of appeal from the decision and allowance of said, commissioners was served upon the clerk of said board of commissioners within 30 days after the making of the decision and allowance pretended to be appealed from, or at any other time, or at all. (4) That no such notice was served at any time upon the claimant, John W. Morse. (5) That said pretended appeal was taken from a part only of the decision and allowance of said county commissioners upon the claim of said Morse, and not from the whole thereof, as required by law." The court sustained the motion, dismissed the appeal and entered judgment for respondents for costs. From this judginent this appeal is prosecuted. The first ground of the motion to dismiss the appeal is that there is no proof of a written notice of appeal having been served upon the clerk of the board, as required by law. Section 764, div. 5, Comp. St. 1887, requires, in such cases, written notice of the appeal to be served on the county clerk within 30 days after making the decision or allowance by the board. The bill of exceptions in this case recites that a copy of such notice was served upon the clerk by the sheriff within 30 days after the allowance of the account by the board. The county clerk thereafter transmitted the proceedings in the case before the board, with the copy of the notice of appeal, to the district court, as required by section 765, div. 5, Comp. St. 1887. We think the county clerk thereby waived any informality, irregularity, or insufficiency of the service of the notice there may have been. Wade, Notice, § 1220, and authorities cited.

The second ground of the motion for dismissing the appeal is that there is no proof of service of such written notice of appeal on respondent John W. Morse, the real party in

interest. He was served with a copy of the notice. Counsel for the respondents contend that Morse, being the real party in interest, was entitled to notice of the appeal, in order to give the district court jurisdiction thereof, and cite State v. Minar, 13 Mont. 1, 31 Pac. 723, as authority in support of this contention. In State v. Minar, Brown was the real party in interest. This court held that a judgment rendered against him without notice was void, but the court did not hold that it was necessary to give him notice of the appeal in order to give the court jurisdiction thereof. In fact, the opinions in that case are to the effect that it was not essential that Brown should be served with notice in order to confer jurisdiction of the ap peal upon the district court. The court held that to try and determine the merits of Brown's claim without giving him notice and opportunity to be heard in court was illegal, and that a judgment rendered against him upon the merits of his claim, under such circumstances, was null and void. We are of the opinion that it was not necessary to serve Morse with notice of the appeal in order to give the court jurisdiction thereof. But, after acquiring jurisdiction of the appeal, it would be the duty of the court to see that Morse had notice of the pendency of the case, and an opportunity to be heard before trying it, or rendering judgment thereon.

Counsel, as a further ground for dismissing the appeal, insist that the appellant could not appeal from part of the allowance or decision of the board. The account allowed is in three distinct items. We think the right to appeal from part thereof is conferred by the statute. A taxpayer who wishes to appeal may not wish to question the legality and justice of part of an allowance by the . board, but may have the best of reasons for challenging the legality and justice of other items thereof. In such case there could be no good reason for requiring a taxpayer to appeal from the whole of the allowance or not at all. Such a holding might, in many cases, prevent appeals by taxpayers from the most unjust and excessive allowances by the board.

We think the recital, in the bill of exceptions, that the county clerk was served with a copy of the notice of appeal by the sheriff within 30 days after the allowance of the account appealed from, and his transmission thereafter of the papers and proceedings before the board to the district court, gave that court jurisdiction of the appeal. We think the clerk of the board sufficiently certified a return of the proceedings of the board in relation to the allowance of the account in controversy. We think the court erred in dismissing the appeal for want of jurisdic tion. The judgment appealed from is therefore reversed, and the cause remanded for trial.

DE WITT, J., concurs. HUNT, J., absent.