105 Tenn. 693 | Tenn. | 1900
This is a bill to enforce an attorney’s lien for his fee against the homestead of the defendant, M. Lerch, Sr. The Chancery Court granted the relief prayed and sold the homestead,
It appears that II. Lerch, Jr., filed his bill in February, 1896, against M. Lerch, Sr., claiming, that his father was indebted to him, and attaching his lands on the ground that he had already,, or was about, fraudulently to convey them. Other persons, who had levied executions on the lands, were made parties to the suit. The complainant, McLean, as attorney, represented the defendant, M. Lerch, Sr., in those cases. He filed an answer and cross bill, and in the latter set up the homestead right of M. Lerch, Sr., in the lands. He in the meantime ascertained that M. Lerch, Sr., had fraudulently conveyed the land to his son, Joseph Lerch. He procured this deed to be rescinded upon the idea that while it stood in force M. Lerch could not successfully claim homestead in the land which he had thus fraudulently conveyed. Matters so progressed that under the cross bill of M. Lerch, Sr., he was allowed and decreed a homestead right in the land involved, as against the attachment, but not as against the executions, and in the same decree the Court declared a lien upon the homestead for the fee of complainant, and fixed the amount at $100, upon a written agreement signed by the parties to that effect, and the decree recites on its face that it was done by agreement. The land was sold subject to the homestead and bid in by L. W.
It does not appear that M. Lereh, Sr., had any wife Avhen his homestead right was declared, and the agreement was made by him to fix the amount of the fee of the complainant as attorney. It does appear from the record that he was at that time a man about sixty-six years of age, and had raised a family of eight children, all of whom but two had at that time reached their majority. There is nothing to show that he was the head of a family in any other sense than, that he had these two minor children, and from the fact that a wife is nowhere alluded ' to in either case, we infer he had none -at that time, so that the rights of his wife, if he had one, are not in any way involved in this case.
It is said with much plausibility and force that the homestead cannot be subjected to the payment of an attorney’s fee incurred in either protecting or recovering it. And the constitutional and statutory provisions are cited relating to the homestead right and providing that it shall be exempt from sale under legal process for all debts or liabilities
It is , said in the next place that if there could be any authority for the sale of the homestead for such a debt, it would not exist in the present case. The reasoning is that the constitution and statutes give a homestead, and it is not recovered by suit, but at best is only preserved or protected; that there was really no recovery in the present case, but only a defense of the right, and in such case a lien would not exist, on the well-settled rule that in order to give an attorney a lien upon property or a fund, it must be recovered, and not merely defended, by such attorney. Garner v. Garner, 1 Lea, 30; Stanford v. Andrews, 12 Heis., 664.
In this case the land of defendant, embracing the homestead, 'was attached and levied upon. The attorney filed an answer and cross bill asserting his rights to homestead and rendered services which were agreed to be worth $100. A lien was declared for that amount on the homestead thus protected, which was not appealed from, but allowed to stand. Not only so, but the attorney, in order to protect and regain the homestead, procured the fraudulent deed to M. Lerch, Jr., to be set aside, believing that while it was in force his client was estopped and precluded from setting up his
The other question presented is a new one, at least in this State. It is shown that in Georgia an attorney has a lien upon a homestead protected by his legal services. Strobecker v. Irvine, 76 Ga., 639; (S. C., 2 Am. State Rep., 62); Haygood v. Damenby Co., 102 Ga., 24.
But this appears to . be under a statute which does not exempt the homestead from seizure for judgments, executions or decrees for debts incurred in the removal of incumbrances on it, and in addition, the cases do not seem to be in accord with a somewhat earlier case of Collins v. Swepson, 74 Ga., 697, with Avhich it was by the Georgia Court not deemed necessary, in settling the issues, before the Court, to reconcile them. The exact language of our constitutional provision is: “The exemption shall not operate against public taxes nor debts contracted for the purchase money of such homestead or improvements thereon.” With these exceptions it is declared the homestead shall be “exempt from sale under legal process.” The
Tbe exceptions are thus stated:
“The homestead shall not be exempt from sale for the payment of public taxes legally assessed upon it, or from sale -for the satisfaction of any debt or liability contracted for its purchase or legally ' incurred for improvements made thereon. It shall be exempt from seizure in criminal as well as in civil eases, but not exempt from distress or sale for taxes or on a judgment for failure or refusal to work on public roads, or for fines and costs for voting out of the civil district or ward in which the voter lives, or for carrying deadly or concealed weapons contrary to law, or for giving away or selling intoxicating liquors on election days.” Shannon, § 3199.
“The homestead upon leashold estates shall not be exempt from execution or attachment for rent due thereon.” Shannon, § 3803.
While it was the evident purpose of these constitutional and statutory provisions that a homestead should not be subjected by legal process to any of the debts and liabilities of the owner, and that it should be exempt from seizure for debts, it was not their purpose to place such restrictions
Now in this case, as we have found, the homestead was not only protected in the suit, but was also recovered through the efforts of the attorney engaged in the litigation, and as a part of his services in the case. The decree was taken, and the record shows that the amount ,of the fee was fixed by agreement of the parties. The decree and agreement were equivalent to the execution of a mortgage or charge upon the homestead by the owner, but without any power of sale. This being so, it cannot be that this lien, thus fixed by decree, not excepted to nor appealed from and one which still remains in force and is virtually a consent decree, cannot be enforced by a proper
It is perhaps necessary to add that it is not intended by this holding to sanction a practice which has grown up of declaring a lien upon a homestead for services rendered merely in its defense and protection upon the ex parte application of the attorneys, oftentimes without notice to or assent by his client. We do not intimate a holding in such a case, and the present is not such a case, but one where there is a decree virtually consenting to the lien and by agreement, expressly fixing the amount of the charge, and this unexcepted to and uncomplained of for a number of years. In such case we can see no reason why the lien should not be enforced as we have before stated. The rights of a wife,' if there is one, are not involved. No wife is a party to or mentioned in either proceeding.
We may, for the sake of distinction, grant that
There is no error in the result reached by the Court of Chancery Appeals, and its decree is affirmed.