McDonald v. Norton , 123 Ark. 473 ( 1916 )

Hart, J.,

(after stating the facts). Counsel for the plaintiff claimed a lien under Act 293 of the Acts of the General Assembly of 1909. Section .1 of the, act reads as follows: “The compensation of an attorney or counsellor at law for his services is governed by agreement, express or implied, which is not restrained by law. Prom the commencement of an action or special proceeding, or the service of an answer containing a counter-claim, the attorney who appears for a party has a lien upon his client’s cause of action, claim or counter-claim, which attaches to a verdict, report, decision, judgment or final order in his client’s favor and the proceeds thereof in whosoever hands they may come; and the lien can not be affected 'by any settlement between the parties before or after judgment or final order.” Acts of 1909, p.'892.

It is insisted by counsel for the defendants that the aet of 1909 just referred to, was passed for the purpose of protecting attorneys,who recovered judgments in damage suits, and does not include decrees such, as the one rendered in the chancery court in the case of Reeves v. Moore, referred to in the statement of facts. We can not agree with the contention of counsel for the defendants. If the statute in question meant to limit the right of an attorney of record to enforce his lien only in an action for. the recovery of damages, it would have read “cause of action for tort” or “cause of action for a personal tort” as the Legislature might intend to limit it. The statute in general terms gives the attorney a lien upon his client’s cause of action.

(1) In 1 Cyc. p. 643, it is said that “cause of action” is different from suit, action and the like. The author says that the cause of action is the right to be enforced or the injury to be redressed; and the action or remedy is the means which the law has provided whereby ■ such enforcement or redress may be effected. This includes an action on contract as well as an action for tort and embraces a claim for property as well as a demand for tbe payment of money. The meaning of the section is that the attorney shall have a lien upon his client’s cause of action from the commencement of the suit thereon, and if afterwards the same becomes merged in “a verdict, report, decision, judgment or final order in his client’s favor,” such lien shall attach thereto. In other words this lien is upon the cause of action until merged, and then attaches to the thing into which the cause of action is merged. See Taylor v. St. Louis Transit Co. (Supreme Court of Mo.), 97 S. W. 155.

In the case of Smoot v. Shy, 139 S. W. (Mo.) 239, the facts were, there was an order of sale in a suit for partition of real estate and the property was bid off by one Shy for a stipulated price. On the report of sale coming in, all parties to the action objected to the confirmation of the sale on various grounds and moved to set it aside. A firm of attorneys was employed by the parties to the partition suit who agreed to pay them a certain sum out of the proceeds of re-sale of the amount the land brought in excess of the original price. The attorneys procured the sale to be set aside and the land was sold at an increased price, Mr. Shy again being the purchaser. The re-sale was approved by the court and the proceeds ordered paid out to the parties according to their interests. Shy purchased the interests of certain of the parties to the partition suit with full knowledge of the terms and conditions of the employment of the attorneys. The St. Louis Court of Appeals held that the attorneys were entitled to a lien under a statute of precisely the same terms as the section of our statute above quoted.

('2-3) As we have already seen, the statute gives to the attorney a lien upon his client’s cause of action and not merely a lien 'upon the suit and the proceeds which might result from the prosecution of it. It is true that under the timber deed executed by Moore to Reeves, although the deed was not acknowledged, Reeves had the right to go upon the land and cut down and remove the timber. It is also true that Reeves filed the deed in the recorder’s office for record, but an unacknowledged deed is not entitled to record in this State, and the recording of the deed in question was not constructive notice to any subsequent bona fide purchaser for value of the land on which the timber was situated, of the rights of Reeves under the timber deed. Reeves could not compel Moore to acknowledge the deed without bringing a suit which would have that effect.

In his suit against Moore, Reeves alleged that the conveyance from John P. Moore to his son Frierson Moore was a voluntary one and was made to defeat his rights under the timber deed. He also alleged that Frier-son Moore had notice of the execution of the timber deed to him and he asked that John P. Moore be required to execute a proper deed to him for the timber; or that other appropriate relief be granted.

Frierson Moore in his answer averred that he was a bona fide purchaser for value and denied that he had any knowledge of the conveyance of the timber to Reeves at the time he purchased the land from his father. The deed from his father to him gave Frierson Moore the right to take possession of the land and after doing so, he denied the right of Reeves to enter the land and remove the timber.

(4) The chancellor found all the issues, in favor of Reeves and granted him the relief prayed for in his complaint. So it will be seen that Frierson Moore by virtue of his alleged ownership of the land was holding possession of the timber. Hughes & Norton, by virtue of their legal services in that suit, in effect, regained the timber for Reeves, and we think their right to a lien on ■the land is within the spirit, if not the letter of the statute.

The decree will therefore be affirmed.