| Ark. | Nov 15, 1885
In March, 1883, DuVal & 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, (Striker 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 $1500, and that by the statute law of this state they hold á 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. Herghy' resisted the confirmation of the sale, upon the grounds that the price wag 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 $8000 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, 26 Ark., 381, and followed in Fry v. Street, 44 Id., 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 DuVal & Cravens had any lien, and whether the decree condemning the lands to be sold was such an 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. That case relies upon Smalley v. Clark, 22 Vt., 598" date_filed="1850-01-15" court="Vt." case_name="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 alien on the papers in his hands. Shaw v. Neale, 6 H. L. Cases, 581; overruling Barnesly v. Powell, Ambler, 102. Soon after that decision, and probably in consequence of it, the statute of 23 and 24 Victoria, chap. 127, sec. 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 chap. app., 273; S. C. 3 Moak, Eng. Rep., 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. Cozzens v. Whitney, 3 R. I., 79; Newbaker v. Alricks, 5 Watts, 183" date_filed="1836-05-15" court="Pa." case_name="Newbaker v. Alricks">5 Watts, 183; Humphry v. Browning, 46 Ill., 476" date_filed="1868-01-15" court="Ill." case_name="Humphrey v. Browning">46 Ill., 476; Forsyth v. Beveridge, 52 Id., 268; S. C. 4 Am. Rep., 612.
Since the case of Hanger v. Fowler, supra, was decided, our legislature has adopted a Civil Code, which enacts that when any judgment is recovered in a court of record by any party, every attorney who upon contract, express or implied, has rendered service in behalf of such party,-shall have a lien upon, and interest in, such judgment to the amount to which he is entitled, or, if .no amount is fixed, a reasonable compensation for his services. And when the judgment is for the recovery of real or personal property, the lien shall amount to an interest in the property to the extent of the fee. Mansf. Dig., secs. 3935-3937.
Gist v. Hanly, 33 Ark., 233, was a case of an attorney’s lien upon securities belonging to his client but in his possession. Porter v. Hanson, 36 Id., 592; Compton v. State, 38 Id., 601; and McCain v. Portis, 42 Id., 402, were cases of liens upon a fund in court. In Lane v. Hallum, 38 Id., 385, this court was first brought face to face with the charging lien of the attorney, which is the creation of the statute; and it was there decided that as the statute gives him an interest in the property recovered to the extent of his lien, he is to be deemed, pro tanto, an equitable assignee of the judgment. He has a claim to the equitable interference of the court to have the judgment held as security for his debt.
Our statutory provisions on this subject were not derived from the Code of Kentucky. But in 1871 the legislature of that state passed an act which provides that when an attorney shall be employed by either party to an action, and shall prosecute the same to recovery, he shall have a lien upon any property, either personal or real, which may be recovered therein, for the amount of his fee. The1 court of appeals construe this to mean that where nothing is recovered for the client, there is nothing to which the lien can attach. Wilson v. House, 10 Bush., 406.
The lien on the specific property recovered, provided by Sec. 3937 of Mansfield’s Digest, is limited to cases where there has been an actual recovery, and can not be extended to professional services which merely protect an existing title or right to property. Thus in Tennessee, where the solicitor’s lien on land recovered for his client seems to be recognized, a plaintiff sought to establish a resulting trust in land, but he was defeated. And it was held the defendant’s solicitor could not assert a lien on the land thus successfully defended. Garner v. Garner, 1 Lea., 29; per Cooper, J. Compare also Huison v. Garble, 65 Ala., 605" date_filed="1880-12-15" court="Ala." case_name="Hinson v. Gamble">65 Ala., 605.
Our statute is not so broad as the English act. It does not give the attorney a lien on the estate he has rescued from an unjust claim, and-saved for his client, but only on the property he has actually recovered.
Now a bill to remove a cloud from the title to land, is not, in any sense, an action for the recovery of land, or for the possession thereof. It is not instituted for such a purpose, nor can the plaintiff have that relief, for he must be already in possession to entitle him to maintain the suit. The object is simply to clear the title from doubt. Chapline v. Holmes, 27 Ark., 414.
The decree, so far as it awards a personal judgment against. Hershy, is affirmed, but so far as it subjects the lands fhat were the subject of litigation in the former suit to the payment of such judgment, is reversed and vacated at the costs of the appellees.