Owens v. Bolt
| Decision Date | 08 November 1928 |
| Docket Number | 7 Div. 813 |
| Citation | 218 Ala. 344,118 So. 590 |
| Parties | OWENS et al. v. BOLT et al. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Cleburne County; R.B. Carr, Judge.
Suit in equity by Mrs. Annie Bolt and another against Mrs. Annie Owens, with petition for intervention by Charles F. Douglas. From a decree overruling motions to strike and demurrers to the petition, defendant and J.A. Owens appeal and apply for mandamus. Mandamus denied; reversed and remanded.
R.E Jones, of Heflin, for appellants.
Chas F. Douglas, of Anniston, for appellees.
Mrs Annie Bolt and Mrs. Louise Robertson, claiming to be the owners of an undivided one-half interest in certain real estate then in possession of Mrs. Annie Owens, employed Chas. F. Douglas, attorney at law, by contract in writing, to take all necessary steps to recover their interest, convert it into cash, and to receive as compensation 40 per cent. of the amount realized.
Thereupon a bill was filed, praying a sale of the lands for division, and an accounting for rents received from the common property by Mrs. Owens, the owner of the other half interest.
Mrs. Owens filed her answer, denying any title or interest in complainants, and alleging permanent improvements enhancing the value of the property. The answer was made a cross-bill praying an allowance for the improvements in so far as they enhanced the value of the common property.
Complainants answered the cross-bill. At this stage complainants, without the consent of their counsel, sold and conveyed their interest in the property to J.A. Owens, husband of the respondent Annie Owens, making no payment nor provision for payment for the services of their counsel. Mrs. Owens, by amended answer, set up this conveyance by complainants of all their interest in the subject-matter in bar of the further prosecution of the suit.
Thereupon Mr. Douglass, by leave of the court, filed his petition of intervention reciting the history of the case, claiming an attorney's lien on the lands, and praying that the cause proceed to hearing as though complainants had made no such conveyance, that the property be sold for division, and that the amount due intervener for counsel fees be ascertained and paid from the proceeds of the sale. There was a prayer for general relief.
J.A. Owens, the purchaser from complainants, was made a party to the intervention proceeding. He and Mrs. Owens filed separate motions to strike the petition for intervention. These being overruled, demurrers were filed and overruled.
The appeal is from these several rulings, with motion for alternative mandamus.
Code, § 9319, deals with counsel fees to be charged against the common property, paid out of the proceeds in case of sale, or declared a lien on the several shares in case of partition in kind.
Code, § 6261, is a more general and inclusive statute, covering the same subject. Such counsel fees are there taxed and collected as costs of suit.
Under these statutes, the allowance is solely for services inuring to common benefit of all the tenants in common. A measure of discretion is vested in the court. Where the only common benefit is in the allotment to each of his own interest in the property in kind or in the proceeds of sale, such common benefit cannot accrue unless this end is accomplished. The result determines the right to and the measure of such allowance.
Nothing in these provisions gives the attorney a standing in court as a party to the litigation, or deprives the complainant of control over his suit. Dent v. Foy, 214 Ala. 243, 107 So. 210; Farmers' Bank & Trust Co. v. Borroughs, 217 Ala. 97, 114 So. 909; Ex parte McLendon, 212 Ala. 403, 102 So. 696.
The intervention petition shows that, by parting with their title, complainants have disabled themselves to prosecute the suit to a sale for division as against their grantee and the other tenants in common who resist such sale, and who alone are interested therein.
It follows that complainants' counsel has not rendered and cannot now render any services for the common benefit of the joint owners entitling him to compensation from the common property under sections 6261 and 9319.
But the client is liable for all services rendered by his attorney pursuant to his retainer, less such allowance, if any, as may be made from the common fund under rules above stated.
Services in contesting the claim of title between complainants and respondent, Mrs. Owens, in calling her to account for rents, and in resisting her claim for improvements, would not be compensated from the common fund had the suit proceeded as begun. These were adversary proceedings, the services inuring to the client as opposed to the interest of the cotenant. The sale for partition being defeated by act of complainants, the only claim for compensation by their counsel is a claim against them.
Intervener claims a lien on the interest of complainants in the lands, seeks to have that interest ascertained, as well as the sum due them on accounting for rents, and to have the lien enforced on such interest for the compensation ascertained to be due intervener. The purchaser, J.A. Owens, is alleged to have taken the lands with notice and subject to the attorney's lien thereon.
This brings us to consider Code, § 6262, declaring and defining attorneys' liens. This section reads:
It will be noted this section reaffirms the common-law lien on moneys and papers in the attorney's possession and on judgments or decrees for money. It goes much farther in several respects.
Subdivision 2, as relates to settlement of suits for the recovery of money without the attorney's consent, expressly confers upon attorneys "the same right and power over said suits *** to enforce their liens, as their clients had or may have for the amount due thereon to them."
The settled practice under this statute is to permit the attorney to intervene, prosecute the suit to a hearing and recover the amount due him. Fuller v. Lanett Blocking Co., 186 Ala. 117, 65 So. 61; Western Ry. of Ala. v. Foshee, 183 Ala. 182, 62 So. 500; Denson v. Ala. Fuel & Iron Co., 198 Ala. 383, 73 So. 525; Lowery v. Illinois Central Ry. Co., 195 Ala. 144, 69 So. 954; Gulf States Steel Co. v. Justice, 204 Ala. 577, 87 So. 211.
Intervener's claim is asserted under subdivision 3, § 6262. As it first appeared in the Code of 1907, § 3011, the lien declared by subdivision 3 was limited to personal property. It is extended to real property by the Code of 1923.
Considering the broad terms of the statute as a whole and the legislative policy manifested thereby, we see no good reason to deny that the attorney's lien therein declared attaches in suits for partition or sale of lands for division.
Under section 9319, fees allowed for services for the benefit of all are charged as a lien upon the entire land.
We think subdivision 3 intends a lien on the interest of the client in...
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