Marshall v. Casteel

• Court: Supreme Court of Nebraska
• Citation: 11 N.W.2d 818,143 Neb. 68
• Docket Number: 31501.
• Parties: MARSHALL v. CASTEEL et al.
• Decision Date: 26 November 1943

11 N.W.2d 818

143 Neb. 68

MARSHALL v. CASTEEL et al.

No. 31501.

Supreme Court of Nebraska

November 26, 1943

Syllabus by the Court.

In a foreclosure action, where plaintiff's attorney filed an attorney's lien against the decree and the land involved, and the land was sold to the judgment creditor to satisfy the decree, the attorney secured a confirmation of the sale and delivered the deed to the purchaser, title to the land passed to the purchaser free from the lien.

Lee Card, of Chadron, pro se, and A. H. Bigelow of Omaha, for appellants.

Robert R. Wellington, of Crawford, Allen, Requartte & Wood and James L. Brown, all of Lincoln, for appellees.

Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE CHAPPELL and WENKE, JJ.

SIMMONS Chief Justice.

On motion for rehearing it is urged that the case of Zentmire v. Brailey 89 Neb. 158, 130 N.W. 1047, is controlling in the instant case. There an attachment action was brought and an attorney's lien filed in the attachment action. Subsequently the plaintiff dismissed the action without the consent or knowledge of his attorney. The attorney then proceeded promptly to secure a reinstatement of the attachment suit to the extent of his lien and proceeded to enforce his lien in the attachment action as an adverse party to his former client. There the attorney used the processes of the court to protect and enforce his lien in the action where the services were rendered.

Here the attorney proceeded for his client. He secured a confirmation of the sale under foreclosure decree. He delivered the deed to his client. Here the attorney actively conducted the proceedings by which the land was sold to satisfy the decree upon which he claimed the lien. He at no time took any steps to enforce his lien in the foreclosure action. He does not here undertake to enforce his alleged lien. He merely asks that an equity court refuse to quiet title against the alleged lien until he is paid.

Syllabus point number two of the original opinion is more comprehensive than the facts here warrant. It is withdrawn and the following substituted in its stead. "In a foreclosure action, where plaintiff's attorney filed an attorney's lien against the decree and the land involved, and the land was sold to the judgment creditor to satisfy the decree, the attorney secured a confirmation of the sale and delivered the deed to the purchaser, title to the land passed to the purchaser free from the lien."

The motion for rehearing is denied.

PAINE Justice (concurring).

I hesitate about adding anything to the opinion released March 26, 1943, and found in 8 N.W.2d 690, and the supplemental opinion to which this is attached, for the reason that these two concise opinions, with which I concur, written by the Chief Justice, definitely dispose of the matters before us in the case at bar. However, while the only question involved is the validity of an attorney's lien, I personally believe that a little further discussion of the subject and a review of some of our early Nebraska decisions may prove helpful.

In the case at bar, an action in equity was brought to quiet title to land in Dawes county, and to cancel and remove several clouds of record from plaintiff's title. By decree entered October 7, 1941, all defects in and clouds upon the title of plaintiff were forever removed, and plaintiff's title forever quieted against all defendants, and he was decreed to be the sole owner in fee of said land. The attorney's lien of defendant Lee Card was thus canceled and annulled, and he was enjoined from asserting any right, title, or lien in and to said lands. Lee Card is the only defendant appealing therefrom.

In Nebraska, an attorney's retaining lien, as provided in section 7-108, Comp.St.1929, may be defined as the right of an attorney at law to retain possession of such documents, money, or other property of his client coming into his hands by virtue of the professional relationship, until he has been paid for his services, or until he voluntarily surrenders possession of the property, with or without payment. See 2 Thornton on Attorneys at Law, 970, § 573.

An attorney ordinarily has no lien for fees against land which client acquired by reason of attorney's services in foreclosure proceeding, Guthrie v. Home Building & Loan Co., 116 Fla. 822, 156 So. 882, in the absence of a special contract or agreement, unless the statute gives him right thereto. See Hagearty v. Ryan, 123 Conn. 372, 195 A. 730; Keehn v. Keehn, 115 Iowa 467, 88 N.W. 957; Martin v. Harrington, 57 Miss. 208.

There are a few states in which the statute gives an attorney a lien upon land, among them Alabama, Georgia, Kentucky and Indiana. See Owens v. Bolt, 218 Ala. 344, 118 So. 590; Booram v. Day, 216 Ind. 503, 25 N.E.2d 329.

By a Georgia statute, attorneys have lien upon all suits for the recovery of real or personal property. This not only covers the judgments received, but attaches to the real property which they have recovered. See Prudential Ins. Co. v. Byrd, 188 Ga. 527, 4 S.E.2d 175.

Under section 107 of the Kentucky Statutes, it has been steadily held that the attorney's lien applies to property as well as money, and where the suit is for land, the attorneys, if successful, are entitled to a reasonable fee with a lien on the land. See Getaz v. Eversole, 234 Ky. 164, 27 S.W.2d 688. Therefore, cases cited from any state where the statutes give an attorney a lien on land are not helpful in deciding a Nebraska case.

By the great weight of authority, an attorney, in the absence of specific statute or a contract providing therefore, has no charging lien against land involved in the litigation, which he has recovered for his client, or the title to which he has successfully defended against attack. See annotation, 93 A.L.R. 670, supported by citations from more than 12 states. See, also, 6 C.J. 780; 7 C.J.S., Attorney and Client, § 228, p. 1174.

We will now consider several cases very closely in point. In Enos v. Keating, 39 Wyo. 217, 271 P. 6, 275 P. 131, 67 A.L.R. 430, the attorneys made a written contract with Enos, an Indian, that they should receive one-half of the moneys or land which they recovered, the property having been conveyed by Enos during his minority. The attorneys gave notice of the lien and brought suit. In this long opinion Justice Riner reviewed many of the early cases, and stated that the contract did not undertake to establish a lien, it was merely an attorney's contingent fee contract, and the action, if successful, would simply have revested the title to the land in Enos, it would not have secured a money judgment. Therefore, at the time that Enos severed his connection with his counsel and dismissed the action, the contract with his attorneys was simply an executory agreement, which did not give his attorneys any legal or equitable interest in the land which was the cause of action.

In a New York case, the Berkat Realty Company employed an attorney to foreclose a bond and mortgage of $70,000 made by the Elkat Realty Company, defendant. After the action was commenced, the mortgagee became insolvent, and assigned its entire interest in the bond and mortgage to the Progressive Merchants' Company, who refused to pay the original attorney, and substituted its own attorney. It was held that the lien of the original attorney was in no wise impaired by the assignment, and such lien, of the reasonable value of $2,000, is in full force and effect, and that, in the event the property is sold under judgment of foreclosure, the lien will carry on to the funds to the extent indicated. Progressive Merchants' Co. v. Elkat Realty Co., 136 Misc. 682, 244 N.Y.S. 17.

A leading case, referred to in nearly all text books and encyclopedias in discussing attorneys' liens, is Gist v. Hanly, 33 Ark. 233, released in 1878. Thomas B. Hanly was employed as attorney by William H. Ford, a nonresident, to bring suit by attachment against Thomas C. Gist on two notes given by Gist for $3,500 each, dated December 27, 1859. The attorney was paid $225 retainer, and in addition thereto was to have 8 per cent. of what he recovered. Suit was brought on each note, and at the same time the attorney levied attachments on 1,500 acres of the defendant's land.

Motions were filed to dismiss on the ground that the notes were given for purchase of slaves, but before motions were ruled upon Gist died, and the suits were revived against his executor, Thomas Gist. Without the knowledge of his attorney, plaintiff and the executor settled the suits, the executor paying $1,500, and plaintiff gave an order on his attorney to deliver the notes to the executor. The attorney refused, and filed action in equity to enforce his liens upon the notes for the remainder of his fees and the costs.

The court found for the attorney, and said that a client may compromise or settle a suit without the consent of the attorney, but in no way does it take away the lien of the attorney upon the papers and securities in the case. It was held that the lien of the attachment inured to the benefit of the attorney, and the parties for that reason had not the right to make settlement between themselves and release the attachments upon the land.

I will now consider several Nebraska cases which have been cited as controlling the case at bar.

In Rice &amp Gorum v. Day, 33 Neb. 204, 49 N.W. 1128, released in 1891, Judge Maxwell said that the lien of an attorney upon a judgment obtained by him to...