Middleton v. Westmoreland
| Decision Date | 18 June 1927 |
| Docket Number | 5685. |
| Parties | MIDDLETON et al. v. WESTMORELAND et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Attorneys at law in this state have by statute liens upon all suits for the recovery of real or personal property, upon all judgments and decrees for the recovery of the same, and upon the property recovered, for their fees, superior to all other liens except liens for taxes.
(a) Where a testator devised land and other property to his widow, and the will was caveated by certain of his relatives and where a former wife of the testator applied for a year's support and dower out of the land bequeathed to his widow, who employed counsel to probate the will and to resist the applications for year's support and dower, and where the attorneys so employed rendered services in probating the will and in resisting said applications, which resulted in the settlement of all this litigation, under which the widow received the land devised and other property bequeathed to her under the will, the settlement being fully approved by her, such land was property recovered by her attorneys, and falls not only within the spirit of the statute, but also within its letter, and the attorneys had a lien thereon under our statute.
(b) The rule to be deduced from the decisions construing laws similar to our own, which give attorneys' liens, is that the lien attaches to the fruits of the labor and skill of the attorney, whether realized by judgment or decree, or by virtue of an award, or in any other way, so long as they are the result of his exertions.
Liens of attorneys at law upon real estate, being enforceable as mortgages, may be foreclosed either by the statutory proceeding provided under our Code for the foreclosure of mortgages, or by a suit in equity.
(a) When liens of attorneys at law upon real estate are enforced in equity, the suit must be brought in the county of the residence of a defendant against whom substantial relief is prayed.
(b) Where attorneys at law proceed by suit in equity to foreclose their lien upon real estate which has been sold by the executors of their client, to trace the fund arising from such sale, and to subject it to the satisfaction of their lien, and the suit is brought in the county of the residence of a corporation which is in possession of a portion of said funds under an agreement between the executors and the purchaser at their sale of said land, that the same is to be held to hold the purchaser harmless against the lien of the attorneys, such suit, so brought against the holder of said fund, the executors of the client, and the purchaser at their sale, who reside in different counties from that of the corporation, seeks substantial equitable relief against the corporation, and is properly brought in the county of its domicile.
The court below did not err in overruling the demurrer based upon the grounds that the petition set forth no cause of action and was not brought in the county of the residence of a defendant against whom substantial relief was prayed.
Error from Superior Court, Fulton County; G. H. Howard, Judge.
Petition by George Westmoreland and another against Hugh Clements Middleton and others as executors of Catherine Houston Gunn deceased, and another. Demurrer to petition was overruled and defendants bring error. Affirmed.
George and John L. Westmoreland filed their petition in Fulton superior court against the Atlanta Title & Trust Company, of Fulton county, Hugh Clements Middleton and Charles G Houston, as executors of Catherine Houston Gunn, of Richmond county, and A. H. Harper, of De Kalb county, in which they made these allegations: J. A. Gunn died testate, in Fulton county, in 1924. By his will he left to his wife, Catherine Houston Gunn, among other property, certain described real estate in said county. When his will was offered for probate by his wife, who was named the executrix thereof, caveats were filed thereto by certain of his relatives, upon various grounds. A petition for year's support and dower out of said real estate was filed by a former wife of testator. The wife employed George and John L. Westmoreland as attorneys to represent her in all of said proceedings. They made a satisfactory settlement of said litigation for her, which she approved, and by and through the representation of said attorneys she saved said real estate and other property against all adverse claims asserted against the same in said litigation. When said litigation was ended said attorneys and their client agreed upon a fee to said attorneys for representing her in said litigation and bringing it to a successful conclusion, the amount agreed upon for said fee being $2,500, of which amount the client paid $500 and interest to March 1, 1925, leaving a balance due her attorneys of $2,000, as of said date. The client died on May 23, 1925, testate, and her will was probated in Fulton county on May 25, 1925, Hugh Calhoun Middleton and Charles G. Houston qualifying as executors thereof on said date. At the time of her death she was indebted to her said attorneys in the sum of $2,000, with interest thereon from March 1, 1923, for the services so rendered by them to her in said litigation. On February 10, 1926, the executors sold, conveyed, and transferred to A. H. Harper said real estate, the same being sold as the property of the estate of their testatrix. Harper was not a bona fide purchaser for value of said real estate, without notice of the lien of the attorneys, but took the same with full knowledge of said lien. The attorneys have a lien on said described property superior to all other liens against the same, except liens for taxes, if any, and are entitled to have the same sold and their lien paid in full. At the time Harper purchased said property from the executors he required the executors to deposit in escrow with the Atlanta Title & Trust Company the sum of $2,300 for the purpose of protecting him in the purchase of said property against the lien of said attorneys. This money is now in the hands of said company under said agreement. The attorneys are entitled under the law to a lien on said fund, and to have the same paid into court and applied to the satisfaction of their claim. Unless the said company is enjoined from paying over to the executors the above money, it might do so, to the damage of petitioners. Unless Harper is enjoined from disposing of, selling, or conveying said real estate, he might transfer, sell, or convey the same, to the irreparable damage of petitioners. If a bona fide purchaser for value, without notice of said lien, should purchase said property, it would cause irreparable damage to petitioners. Plaintiffs have no complete and adequate remedy at law, and this proceeding in equity will avoid a multiplicity of suits. They pray that the Atlanta Title & Trust Company be enjoined from paying over said money to the executors, or to any one else, except under order of the court; that said company be directed and required to pay said money into court, to be applied to the payment of petitioners' lien; that Harper be enjoined from aliening, selling, conveying, or otherwise in any way disposing of said real estate; that the lien of petitioners as attorneys at law be established and foreclosed against said real estate; and that the same be sold and the said lien satisfied out of the fund arising from said sale.
The executors demurred to said petition, upon the grounds: (a) That the superior court of Fulton county has no jurisdiction of their persons, but the superior court of Richmond county has such jurisdiction; (b) that it appears from the face of the petition that the superior court of Fulton county has no jurisdiction of the subject-matter of said action, but that the superior court of Richmond county only has jurisdiction thereof; (c) that it appears from said petition that said cause is an equity suit, and that the only defendants against whom substantial relief is prayed are demurrants, who are residents of Richmond county, and that accordingly the superior court of Fulton county has no jurisdiction of said cause or of their persons, but that the superior court of Richmond county has such jurisdiction; (d) that said petition sets forth no...
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