84 Tenn. 572 | Tenn. | 1886
delivered the opinion of the court.
Bill to- enforce an alleged lawyer’s lien on land for professional services. The chancellor sustained the bill as to the only fee now' in controversy. Upon the appeal of the defendants, Lawrence and wife, the
On April 15, 1866, J. M. Tomeney conveyed to his wife, Fannie A. Tomeney, by deed duly proved and registered, the land on which the lien is claimed. On January 16, 1871, Tomeney and wife conveyed this land in trust to secure a debt due to the defendant, Jane Lawrence, for $10,000, borrowed money, which was proved and registered at the time, but the certificate of the privy examination was fatally defective. The officer, who took the probate, afterward, in the latter- part .of the year 1874, corrected thé certifícale, under the statute, so as to make it valid in law, as held by this court in Brinkley v. Tomeney, 9 Baxt., 275. The deed seems not to have been re-registered after the correction. Upon a cross-bill filed in that case by Lawrence and wife, Jane, the trust deed was foreclosed, and the property bought by Jane Lawrence at a price which satisfied about half,- or less than half, of her debt, the sale being confirmed and title vested accordingly. The present bill impounds so much of the purchase money at this sale as may be necessary to pay the complainant’s claim upon the land, for professional compensation.
In April, 1871, the Memphis & Ohio Railroad Company filed a bill against J. M. Tomeney to charge him with certain bonds of the company or their value. In October, 1871, the company filed an amended bill against Tomeney and wife, attacking the conveyance of the land in question to the wife as voluntary' and fraudulent, and seeking to' subject it to the satisfaction
The lawyer’s lien on land was first, recognized by this court in Hunt v. McClanahan, 1 Heis., 503. The bill in that case was filed to perfect and maintain the title to a tract of land bought from the defendants by the complainant, and threatened with an execution under a fraudulent judgment. Upon the petition of the counsel of the complainant, this court declared a lien in their favor on the land for their reasonable compensation for professional services in successfully prosecuting the' suit. The equity of the attorney was said to grow out of the transaction, and the court said: “We hold that an attorney is entitled to an equitable lien on the property or thing in litigation for his just and reasonable fees, and that the client can not, while the suit is pending, so dispose of the subject-matter in suit as to deprive the attorney of his lien, nor afterward to any purchaser with notice. The pendency of the suit is of itself notice to all persons, and the lien may be preserved and the notice extended by stating its existence in the judgment or decree.”
The generality of the language thus used seemed to imply that the lien existed in favor of counsel, whether retained by the plaintiff or the defendant, and to give a lien on the land in controversy to the lawyer of the successful party. In consequence of this construction the practice of the courts was for a time very liberal, and the lien was declared in
In • view of these principles and adjudications, it is clear that the complainant did not acquire any lien on the land in controversy by his retainer and services as a lawyer in defending the suit of the Memphis & Ohio Railroad Company against Fannie A. Tomeney, and that the court was in error in declaring the existence in his favor of such a lien. It is contended, however, that although the declaration may have been erroneous, yet it is binding upon the parties as res adjudícala. The original decision of this court in Hunt v. McClanahan, it will be noticed, is expressly put upon the ground that the lawyer’s lien grows out of the transaction, and is created by the lis pendens of the suit, and is only “ preserved and the notice extended by stating its existence in the judgment or decree.” In other words the lien is not the result of the declaration by the court as an adjudication, but of the actual services in the particular case, which services give the lien, and the declaration of the court, by stating its existence, only extends the notice of the lien beyond the lis pendens. In my opinion this is ' the only ground upon which the declaration can stand. It is not, I think, an adjudication of rights, for . the obvious reason that there are no parties before the court to give jurisdiction of the matter declared. For, as a litigation, the proceeding can only be considered, between the law
I am of opinion, therefore, that the complaniant is not entitled to any lien on the land in controversy by reason of the declaration thereof by the court in the final decree in the railroad case. But my brother judges, over my dissent, have come to a different conclusion on a similar declaration in the case of Winchester v. Heiskell, 16 Lea, 556. That decision is conclusive upon , this case, and the complainant must be held to have acquired a lien on the laud from the date of his retainer, as between him and Fannie A. Tomeney.
The conveyance of Tomeney and wife in trust to
The decree, although res adjudícala between the parties, would not prevent the defendant, Lawrence, from showing, in a litigation between her and the complainant, that he had no lien on the land before the date of the decree. A judgment or decree is binding on the parties, but not on strangers: Duchess
The lien declared by the circuit court of the United States was no doubt given in conformity with, and under the State law as settled by the decisions, and must depend for its validity on that law. It is not pretended that there is any statute of the United States, or practice of the federal courts on the -subject.
The chancellor’s decree, in accordance with the ■report of the Referees, will be reversed, and the bill •dismissed with costs.