Hale v. Tyson, 3 Div. 325

• Court: Supreme Court of Alabama
• Writing for the Court: THOMAS, J.
• Citation: 202 Ala. 107,79 So. 499
• Docket Number: 3 Div. 325
• Decision Date: 23 March 1918
• Parties: HALE v. TYSON.

79 So. 499

202 Ala. 107

HALE
v.
TYSON.

3 Div. 325

Supreme Court of Alabama

March 23, 1918

Rehearing Denied May 9, 1918

Appeal from Circuit Court, Montgomery County; Gaston Gunter, Judge.

Bill in equity by John R. Tyson against W.D. Hale. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Anderson, C.J., and Sayre and Somerville, JJ., dissenting.

Weil, Stakely & Vardaman, of Montgomery, for appellant.

John R. Tyson, of Montgomery, for appellee.

THOMAS, J.

The purpose of the bill was to establish and enforce an attorney's lien on the real estate of the client the fruit of the litigation.

It is averred in the bill that during the year 1910, and on June 1st thereof, complainant, an attorney, practicing his profession, was employed by Mary M. Hale as administratrix of the Figh estate to collect a claim therefor, and that he obtained a judgment against one Fitzpatrick, causing the same to be registered as required by statute; that during 1914 he caused execution to issue and be levied on lands owned by the defendant in judgment; that at a sale of such real estate Mary M. Hale became the purchaser, and a sheriff's deed was executed to her in July, 1914. It is further averred that during the year 1917 (and prior to June of that year) said Hale transferred and assigned in writing said judgment to W.D. Hale, and executed and delivered to defendant a deed to the property acquired as aforesaid; that after said Hale became the owner of the judgment, defendant "consulted with orator, obtained legal advice looking to the collection of said judgment and the sale of the property acquired by him from Mary M. Hale." It is further averred that complainant, as attorney, "prepared the deed and the assignment which was made and executed by Mary M. Hale to the defendant, and after the defendant acquired said title to the property he consulted with complainant, and obtained legal advice from him, well knowing that complainant as attorney for Mary M. Hale had obtained the said judgment, and had rendered other professional services looking to the enforcement of said judgment, and well knowing that complainant had a lien upon said judgment for the professional services rendered by him for Mary M. Hale, as administratrix of the estate of Mrs. E.M. Figh." The bill further avers that in May, 1917, a second execution issued on this judgment, and resulted in a sale of the west half of the northeast quarter of section two, township 21, range 16, whereat W.D. Hale became the purchaser, and a sheriff's deed was made to him on June 19, 1917.

The prayer of the bill is that the court ascertain the reasonable value of complainant's services, and enter a decree declaring "a lien in his favor upon the property above described"; and, upon default in the payment of the amount so found by the court to be due the complainant, within the time by the court fixed for its payment, that the court decree a sale of the lands for the enforcement of the lien. The prayer was also for general relief. The demurrer of the respondent on the ground that there is no equity in the bill was overruled. As we are examining the question on its merits, the special grounds of demurrer need not be discussed.

It may be observed that neither the amounts bid at the respective execution sales, nor the amount for which the judgment was transferred and assigned, is averred. No charge of fraud on the part of the client, or on that of her assignee in judgment, to defeat the lien, if any complainant has, is averred. The several transactions made the basis of the instant suit took place with the knowledge or consent of complainant.

At the outset, it is necessary that we consider the nature of the attorney's lien on the client's papers, suit, funds, securities, or judgments, and the fruits thereof, for professional services rendered in the par ticular [79 So. 500] matter. Such liens have been declared and enforced as of two classes, viz. general, promissory, or retaining liens, and charging liens. Weed Sewing Machine Co. v. Boutelle, 56 Vt. 570, 48 Am.Rep. 821; 2 R.C.L. § 150, p. 1063; Warfield v. Campbell, 38 Ala. 527, 82 Am.Dec. 724. The retaining lien attaches to papers, books, documents, securities, or moneys that come into the attorney's possession, professionally or in the due course of his professional employment without a special contract as to it; having the possession, the attorney has the right to retain the same as against the client, his assignments, or attachments, until the attorney's lien for legal services is paid. Though this retaining lien has been held not to extend to the judgment, as there can be no possession thereof by the attorney, it has been decided to extend to an execution or copy thereof in the attorney's hands. Stewart v. Flowers, 44 Miss. 513, 7 Am.Rep. 707. A failure to properly distinguish between a retaining and a charging lien has led to confusion, and this may explain the conflict in the decisions on this subject. Weeks on Attorneys at Law, § 369; 2 R.C.L. p. 1063.

Of the charging lien of attorneys it is said:

"In addition to the retaining lien *** an attorney has what is generally known as a particular, special, or charging lien on the judgment, decree or award obtained for his client, for his services rendered in procuring it. Such lien as recognized by the common law, is the right of an attorney or solicitor to recover his taxable costs from a fund recovered by his aid, and the right to have the court interfere to prevent payment by the judgment debtor to the creditor in fraud of his right to the same, and also to prevent or set aside assignments or settlements made in fraud of his right." "While, as stated, the attorney's lien as enforced at common law is generally recognized, it is frequently the subject of express statutory regulation, which must, of course, be complied with, and the scope of such lien has been greatly enlarged by statute in many states; and in some jurisdictions the right of an attorney to a lien rests entirely on statute, and there is no common law or equitable right of lien. In other states however, there are no statutes relating to attorneys' liens, and the right thereto is based upon the common law."

Mr. Weeks, in his work on Attorneys at Law (section 369), collects the several English cases in which the attaching lien has been enforced on the fruits of the judgment or decree, which the attorney's service has obtained. We have examined each of these cases, with the result that, on the petition of the attorney, his lien was enforced--out of the funds of a lunatic's estate for "his bill of costs in taking out a commission lunacy" (Ex parte Price, 2 Ves.Sr. 407; Barnesley v. Powell, Ambler's Rep. 102); "out of a duty decreed to an administrator" (Turwin v. Gibson, 3 Ark. 720, case 269); "on the judgment for his costs" ( Mitchell v. Oldfield, 4 Term Rep. 123); "upon the debt and costs recovered in the cause" (Read v. Dupper, 6 Term Rep. 361; Randle v. Fuller, 6 Term Rep. 456); and "upon the payment of the annuity to which the executor might be entitled" (Skinner v. Sweet, 3 Maddock's Rep. 244).

The first case we find on the question by the Supreme Court of the United States is Wylie v. Coxe, 15 How. 415, 14 L.Ed. 753. Mr. Justice McLean, delivering the opinion of the court, said:

"The evidence proves that the complainant was to receive a contingent fee of 5 per centum out of the fund awarded whether money or scrip. This being the contract, it constituted a lien upon the fund, whether it should be money or scrip. The fund was looked to and not the personal responsibility of the owner of the claim. A bill filed under the act would have authorized an injunction for the amount claimed by complainant. Such a procedure would be within the act. But under the contract the lien on the fund in the hands of the administrator, is a sufficient ground for an equity jurisdiction. The payment of the fund to the executrix in Mexico would place it probably beyond the reach of the complainant."

The annotations of the Wylie Case (5 Rose's Notes U.S.Rep. 336) show that the lien, when enforced, was against the "fund" procured or recovered for the client by the attorney. Wright v. Tebbits, 91 U.S. 252, 23 L.Ed. 320; Manning v. Sprague, 148 Mass. 18, 18 N.E. 673, 1 L.R.A. 516, 12 Am.St.Rep. 508; United States v. Boyd (C.C.) 79 F. 858; Stanton v. Embry, 93 U.S. 548, 23 L.Ed. 983; Andrews v. Morse, 12 Conn. 444, 31 Am.Dec. 752. It has been declared in state jurisdictions that the charging lien of an attorney does not extend to the real estate to which the client's lien has been successfully prosecuted in equity, nor to the client's land sought to be subjected to an unfounded claim or liability, nor to real property recovered in ejectment. Humphrey v. Browning, 46 Ill. 477, 95 Am.Dec. 446; Martin v. Harrington, 57 Miss. 208. Mr. Jones, in his late work on Liens (1914, 3d Ed., § 229), says:

"An attorney's lien for his fee upon the judgment recovered does not attach to land which is sold in satisfaction of the judgment and purchased by the client." Cowen v. Boone, 48 Iowa, 350; Keehn v. Keehn, 115 Iowa, 467, 88 N.W. 957; Wishard v. Biddle, 64 Iowa, 526, 21 N.W. 15; Stewart v. Flowers, supra.

See, also, 2 Kent's Comm. 640, 641; 4 Cyc. 1014.

Ruling Case Law has to say, of the charging lien of the attorney upon the judgment, decree, or award, for compensation for services rendered in procuring the award (volume 2, § 170, pp. 1079, 1080), that it has been recognized from an early period and now exists in almost every jurisdiction under the common-law rule or by virtue of statute. It is declared that the lien of the attorney upon his client's judgment is an interest to the same extent as if the client had assigned it to him as collateral security for his fees and disbursements, and that he also has an interest in the legal...