Crutchfield v. Foster

• Decision Date: 14 December 1938
• Docket Number: 665.
• Parties: CRUTCHFIELD v. FOSTER.
• Court: North Carolina Supreme Court

200 S.E. 395

214 N.C. 551

CRUTCHFIELD v. FOSTER.

No. 665.

Supreme Court of North Carolina

December 14, 1938

Appeal from Superior Court, Davidson County; E. C. Bivens, Judge.

Ejectment action by Z. V. Crutchfield against Jones Foster. Judgment for plaintiff, and defendant appeals.

Reversed.

A motion for judgment on the pleadings admits matters set up in defense but challenges the sufficiency thereof to bar plaintiff's recovery.

This is an action in common law ejectment instituted by plaintiff to recover of the defendant possession of the two tracts of land described in the complaint. The plaintiff alleges that he acquired title thereto under deed dated August 19, 1935, from the sheriff of Davidson County pursuant to a sale under execution. The defendant denied the material allegations of the complaint and alleged in further defense: "That the deed under which the plaintiff claims title to the property referred to in the complaint was made to him without authority of law and conveys no legal title to him, for that it appears from the entry on Minute Docket No. 28, pages 494-496 in the action entitled, Lula Walker vs. Jones Foster Robert DeLapp and Geneva DeLapp, in the office of the Clerk of Superior Court for Davidson County that the judge made as a part of the judgment an order as follows, 'It further appearing to the Court that C. T. Kennedy, attorney for Jones Foster in this action, is responsible for the recovery by the said Jones Foster of a tract of land fronting approximately fifty five (55) feet by two hundred feet depth on Church Street, it being that portion of the property owned by Cordelia Foster, less the part which Lula Walker has a lien on under and by virtue of this judgment, it is ordered that the said C. T. Kennedy have a lien on said property of Jones Foster as sole heir at law of Cordelia Foster to the extent of seventy five ($75.00) and if said Jones Foster fails to pay said lien within 60 days the said property shall be advertised and sold as provided by law for the foreclosure of other liens."'

The court below signed judgment for the plaintiff and the defendant excepted and appealed.

McCrary & DeLapp, of Lexington, for appellant.

Douglas C. Crutchfield and L. Roy Hughes, both of Thomasville, for appellee.

BARNHILL Justice.

The defendant alleges and contends that the judgment pleaded by him under which his land was sold by the sheriff and purchased by the plaintiff is an attempt to impose a lien on his property for the security of an attorney's fee and is a nullity. No issues were submitted to a jury. The cause was apparently disposed of by the court below as upon a motion for judgment upon the pleadings, which admits the matters set up in defense, but challenges the sufficiency thereof to bar plaintiff's recovery. Barnes v. Trust Co., 194 N.C. 371, 139 S.E. 689; Pridgen v. Pridgen, 190 N.C 102, 129 S.E. 419; Churchwell v. Trust Co., 181 N.C 21, 105 S.E. 889; Oldham v. Ross, 214 N.C. 696, 200 S.E. 393.

The common law rule, which applies in this state, is stated in 2 R.C.L., page 1077, as follows: "The weight of authority is to the effect that, in the absence of statute, the charging lien of an attorney for compensation for professional services does not attach to the land involved in the litigation in which such services were rendered. This rule applies in cases where the attorney has successfully prosecuted a suit in equity to establish title to land; where he has recovered land in an action of ejectment; and where he has successfully defended the right and title to land against an unjust claim or an unwarranted attempt to subject it to an alleged lien or liability." In Midgett v. Vann, 158 N.C. 128, 130, 73 S.E. 801, the court says that [page 802]: "Counsel fees * * * in favor of the successful party * * * were abolished by statute in 1871. In...