Higley v. White

• Court: Supreme Court of Alabama
• Writing for the Court: HARALSON, J.
• Citation: 102 Ala. 604,15 So. 141
• Decision Date: 05 April 1894
• Parties: HIGLEY v. WHITE ET AL.

15 So. 141

102 Ala. 604

HIGLEY
v.
WHITE ET AL.

Supreme Court of Alabama

April 5, 1894

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Bill by Irwin B. Higley against E. B. and C. D. Powell. From a decree enforcing a lien in favor of F. S. White and Taliaferro & Smithson for attorneys' fees on the decree in favor of complainant, complainant appeals. Affirmed.

The original bill in this case was filed by the appellant, I. B. Higley, against E. B. and C. D. Powell; and sought the specific performance of a contract for sale. The report of that case, on appeal, is found in 90 Ala. 103, 7 So. 440. The proceedings, which are reviewed on the present appeal, arose in the following manner: After the decree rendered in this case, setting the equities in favor of the complainant, was affirmed on appeal in this case (at the November term, 1889), the reference ordered in that decree was executed, and a decree was rendered by the court below, on the 20th of January, 1891, ascertaining that the defendants were due and owing to the complainant on the 5th of January, 1891,-the date of the report of the clerk and register,-the sum of $4,289.12.-including interest to that date, which, by the decree of the court, was made a charge or lien on the lots described in the bill for its payment; and, in default of the payment of that sum into the hands of the clerk and register within 10 days, he was ordered, in a manner directed by the decree, to proceed to sell said lots to the highest bidder for cash, and make report to the court. The proceeds of the sale, by the terms of the decree, were ordered to be applied-First, to the payment of the costs of the case; second, to the payment to the complainant of said sum of $4,289.12; third, the surplus, if any, to be paid to the defendant, C. B. Powell; but, if said lots should not sell for a sufficient sum to pay said costs and the amount due the complainant, then, and in that event, the complainant shall recover of defendant, C. B. Powell, his costs expended in the cause. A sale was made by the clerk and register, under this order, on 28th September, 1891, which was reported to the court, objected to by the complainant, and which appears never to have been confirmed. At that sale, the complainant bid the sum of $3,500 for the lots, and he tendered in money $432.35, the costs in the case, and his receipt for the balance of the decree, in full of payment of his bid, which was not accepted by the clerk and register. On the 21st of October, 1891, A. O. Lane and F. S. White, as Lane & White, and E. T. Taliaferro and Noble Smithson, as Taliaferro & Smithson, as attorneys for complainant, filed their petition in said court, setting out the services they had rendered to complainant in and about procuring said moneyed decree, in favor of complainant, and having a lien declared on said lots for the payment of the same, stating the value of the services they rendered in that behalf, and prayed the court for a reference to ascertain the value of their services as attorneys, and then, "that a decree be rendered, declaring a lien upon said decree for the amount found due to petitioners for their services aforesaid, and that a...