68 Ala. 402 | Ala. | 1880
That a married woman can not make a valid mortgage of her statutory separate estate, has been too often decided by this court to require further argument.—Gilbert v. Dupree, 63 Ala. 331; O'Connor v. Chamberlain, 59 Ala. 431;
We think it equally clear, that services rendered by an attorney for a married woman, concerning her statutory separate estate, at the time these services were rendered—1866 to 1868—did not fall within the class of articles of comfort and support of the household, for which the separate estate of the wife is liable, under section 2711 of the Code of 1876. Authorities supra, and Wilburn v. McCalley, 68 Ala. 436; Thames v. Rembert, Ib. 561; Lee v. Tannenbaum, 62 Ala. 501.
It is contended for appellee, and was so ruled by the special chancellor, that the complainant was entitled to the-relief he prayed, because his intestate rendered services as. solicitor in saving and preserving Mrs. Lee’s title to lands, her statutory separate estate; and that under the present bill he has a lien on the lands thus saved, for the value of the services rendered. The distinguished Chancellor Coopee, of Tennessee so ruled in Brown v. Bigley, 3 Tenn. Ch. Rep. 618; but we do not feel at liberty to follow that decision. In Humphrey v. Browning, 46 Ill. 476, is found a very careful and able opinion by Breese, C. J., holding the contrary doctrine, and we think his argument can not be answered.—See, also, Smalley v. Clark, 22 Verm. 598; Hanger v. Fowler, 20 Ark. 667; Cozzens v. Whitney, 3 R. I. 79. There are many cases which hold an attorney has a lien on a judgment recovered through his services, for his proper compensation therefor. Warfield v. Campbell, 38 Ala. 527, is a case of that class, and many others might be added. The principle on which these cases rest is carefully considered in Humphrey v. Browing, supra. In the later case of Ex parte Lehman, Durr & Co. 59 Ala. 631, a statute of this State was so interpreted, as to change somewhat the common law principle, which was held to govern Warfield v. Campbell. But the present was not a ease of judgment recovered, payable in money, which, when collected, may, and ordinarily does, pass through the hands of the attorney. It arose out of a defensive proceeding, which protected Mrs. Lee’s lands against an attempt to charge them with a debt. We hold the attorney acquired no lien on the lands.
Reversed, and decree here rendered dismissing complainant’s bill. Let the costs of the suit, and of the appeal in the chancery court and in this court be paid by the appellee.