Hershy v. Du Val

• Decision Date: 01 November 1885
• Citation: 14 S.W. 469
• Parties: HERSHY v. DU VAL <I>et al.</I><SMALL><SUP>2</SUP></SMALL>
• Court: Arkansas Supreme Court

14 S.W. 469

HERSHY v. DU VAL et al.²

Supreme Court of Arkansas.

November Term, 1885.

Appeal from circuit court, Sebastian county; J. L. HENDRICK, Special Judge.

Sanders & Husband, for appellant. Du Val & Cravens, pro se.

SMITH, J.

In March, 1883, Du Val & Cravens filed their bill in equity against Hershy, alleging that he had, in 1878, employed them as solicitors to institute a certain suit, the object of which was to have Hershy's title to an undivided one-sixth part of certain lands declared and quieted; that they had conducted the suit to a successful termination, having obtained a decree in favor of their client in the circuit court, which was by this court affirmed on appeal, (Stryker v. Hershy, 38 Ark. 264;) that the lands had been subsequently divided between the parties in interest, and Hershy's share had been set out to him in severalty; that the plaintiffs' services, in and about said suit, were reasonably worth $1,500; and that by the statute law of this state they hold a lien for their fees upon the lands which were the subject of litigation. They pray for a personal judgment against Hershy, and that the amount thereof may be charged on the lands. Hershy, in his answer, denied the alleged employment by him of the plaintiffs, the value of the services rendered, and the alleged lien upon the property for these services. But the court rendered judgment against him for the sum demanded, declared the same to be a subsisting lien on the lands, and decreed a sale. The lands were accordingly sold, in separate parcels, to Richard T. Kerr, producing in all $511. Hershy resisted the confirmation of the sale, upon the grounds that the price was shockingly inadequate, the lands being worth, as he said, $15,000. He appended the affidavits of disinterested persons, to the effect that the lands were of the value of $8,000 to $10,000. But his exceptions were overruled, the report of sale was approved, and the master was directed to execute a conveyance to the purchaser. Hershy has appealed.

Under the rule established in Brittin v. Handy, 20 Ark. 381, and followed in Fry v. Street, 44 Ark. 502, mere inadequacy of price, in the absence of all fraud or unfairness, does not invalidate a judicial sale. Hershy's exceptions to the confirmation of the sale show that the property was incumbered by judgment and mortgage liens to the amount of several thousand dollars. This perhaps explains why so valuable an estate produced such a small sum. Upon the main question, whether Du Val & Cravens had any lien, and whether the decree condemning the lands to be sold was such a one as should have been pronounced, this court, in Hanger v. Fowler, 20 Ark. 667, held that a solicitor had no lien for his fee upon the land recovered for his client in a chancery suit. The case relies upon Smalley v. Clark, 22 Vt. 598, which was a suit of the same nature as that in which the present plaintiffs were employed, viz., to remove a cloud on the title to lands. The house of lords, in 1858, decided that an attorney or solicitor has no lien upon an estate recovered for a client, in respect of the costs and expenses incurred in recovering it, but only a lien on the papers in his hands. Shaw v. Neale, 6 H. L. Cas. 581; overruling Barnesley v. Powell, Amb. 102. Soon after that decision, and probably in consequence of it, the statute of 23 & 24 Vict. c. 127, § 28, was passed. This enacts that in every case in which an attorney or solicitor shall be employed to prosecute or defend any suit, matter, or proceeding in any court of justice, it shall be lawful for the court or judge, before whom it has been heard or is pending, to declare the attorney or solicitor entitled to a charge upon the property recovered or preserved through his instrumentality, and a right of payment out of it, for the taxed costs, charges, and expenses. And the court or judge is further authorized to make appropriate orders for the taxation, raising, or payment of such costs, charges, and expenses. Under this act, it has been held a solicitor is entitled to a charge for his costs on property the subject of a successful suit conducted by him against an incumbrancer, although the incumbrance be entirely valueless, provided it formed a cloud upon the title. Jones v. Frost, L. R. 7 Ch. App. 773, 3 Moak, Eng. R. 622. But, independently of statute, a solicitor who has performed services and expended moneys in prosecuting or defending a suit, involving the title to or possession of real estate, cannot sustain a claim to obtain compensation and reimbursement out of that specific property....