Middleton v. Westmoreland , 164 Ga. 324 ( 1927 )

Hines, J.

[After stating the foregoing facts.]

Attorneys at law in this State have liens, (a) on all papers and money of their clients in their possession, for services rendered to them; (b) on all suits, judgments, and decrees for money, which can not be satisfied until their liens are fully satisfied; and attornejrs have the same right and power over the same, to enforce their liens, as their clients had or may have, for the amounts due thereon to them; (c) upon all suits for the recovery of real or personal property, and upon all judgments and decrees for the recovery of the same, for their fees, superior to all other liens, except liens for taxes, which may be enforced “as liens on personal and real estate, by mortgage and foreclosure, and the property recovered shall remain subject to said liens unless transferred to bona fide purchasers without notice;” and (d) attorneys at law, employed and serving in defense against suits, have the same liens and means of foreclosure which are allowed to attorneys at law who are employed to sue for any property, if the defense is successful. Civil Code (1910), § 3364. The lien asserted by the plaintiffs is based upon that provision of the above section which gives to attorneys liens upon suits for the recovery of real or personal property, upon all judgments or decrees for the .recovery of the same, and on the property recovered. Unless the petition in this case sets forth. a state of ' facts which brings the case within the terms of this provision of the code section, it must fail as a suit to foreclose a lien. This statute, creating liens in favor of attorneys at law, is in derogation of the common law, and is to be strictly construed. Brown v. Georgia, Carolina & Northern Ry. Co., 101 Ga. 80, 83 (28 S. E. 634). The mere engagement by a prospective suitor of an attorney at law, upon a contingent fee, does not create a lien for fees in favor of the latter, in the cause-of action respecting which he is employed; but upon the filing of a suit by him a lien attaches in his favor in such suit, which the plaintiff and defendant are not at liberty to settle so as to defeat the attorney’s claim for fees. Brown v. Georgia, Carolina & Northern Ry. Co., supra.

This court has held that an attorney is not entitled to a lien upon land for obtaining a restraining order to prevent the sale thereof, when such order was subsequently dissolved, though the delay enabled the client to arrange to prevent the sale. Hodnett v. Bonner, 107 Ga. 452 (33 S. E. 416). In such a ease it could hardly be held that the services of the attorney resulted in the recovery of the land for his client. In that case the relation between cause and effect was so remote that the services rendered by the attorney could not be held to be the cause which effected the saving of the client’s land. In Wooten v. Denmark, 85 Ga. 578 (11 S. E. 861), this court held that “Where an attorney at law, under employment, obtained judgment of foreclosure. of a mortgage and caused execution to be issued and levied on the land, which was sold, his client becoming the purchaser and taking the title, no money being paid, but the price of the land being entered as a credit upon the execution, the lien of the attorney for his fee attached to the land and could be foreclosed thereon.” This court said: “In our opinion, this was property recovered by Wooten for his client, and falls not only within the spirit and equity of the statute, but also within its letter. . . The rule to be deduced from the decisions construing laws similar to our own, which give attorneys’ liens, is that the lien attaches to the fruits of the labor and skill of the attorney, whether realized by judgment or decree, or by virtue of an award, or in any other way, as long as they are the result of his exertions.” So where a testator devised land and other property to his widow, and the will was eaveated, and where a former wife of the deceased applied for a year’s support and dower out of the land bequeathed to his widow, who employed counsel to probate the will and to resist the applications of the former wife for a year’s support-and dower in the land bequeathed to the widow, and where the attorneys so employed by the widow rendered services in an effort to probate the will, and in resisting the applications for year’s support and dower, which resulted in a settlement of all this litigation, under which the widow received the land devised and other property bequeathed to her under the will, the settlement being folly approved by the .client, such land so received by the widow was property recovered by her attorneys, and falls not only within the spirit of the statute, but also within its letter. This being so, her attorneys had a lien on the land so recovered by them, which they could assert by foreclosure.

The liens of attorneys at law upon real estate recovered by them for clients may bo enforced by them “as liens on personal and real estate, by mortgage and foreclosure.” Civil Code (1910), § 3364, (3). Mortgages on real estate may be foreclosed either by the statutory proceeding provided in the Civil Code, § 3276, or they may be foreclosed in equity. § 3305. It follows that liens of attorneys upon real estate may be foreclosed by either of these methods. The proceeding to foreclose the lien in the instant case was one in equity. This being so,' the present suit ought to be brought in the county of the residence of a defendant against whom substantial relief is prayed. Civil Code (1910), §§ 5527, 6540. The suit in this case was brought against Atlanta Title & Trust Company of Fulton County, the executors of Catherine H. Gunn, who reside in Kichmond County, and A. H. Harper of DeKalb County. It is urged by counsel for the executors that no cause of action is set out, and that no substantial relief is prayed against said company, which is the only defendant residing in Fulton County where the suit was brought. It is true that where a petition in equity does not set forth a cause of action against the only defendant residing in the county in which the suit is brought, the court is without jurisdiction to grant substantial relief prayed against defendants residing in another county. Lester v. Mathews, 56 Ga. 655 (4) ; McClellan v. American Tie & Timber Co., 135 Ga. 370 (69 S. E. 486); Glenn v. Cauthen, 150 Ga. 784 (105 S. E. 365). It is,also true that if the resident defendant is a mere stakeholder, his residence would not support the jurisdiction against the non-resident defendants. Shewmake v. Johnson, 57 Ga. 75. The Atlanta Title & Trust Company is not a mere stakeholder, so far as the plaintiffs are concerned, as we shall undertake to show. It is likewise true, as a general rule, that an unforeclosed mortgage can not be used as the basis of a claim for money which is in court for distribution. Thornton v. Wilson, 55 Ga. 607. To this rule there is an exception. Although a mortgage may not be foreclosed, the mortgagee can, by proper proceedings, claim the fund'-arising'from the sale of the property by'the administrator. National Bank of Athens v. Exchange Bank, 110 Ga. 692 (36 S. E. 265). But in this case plaintiffs are not seeking to subject a fund in court to their unforeclosed attorney’s lien. They are seeking to trace and subject the proceeds of property on which they hold - such lien. ' In the first division of this opinion, we have undertaken to show that they had a lien upon the real estate involved in this case. This real estate has been sold by the executors of the client. By an agreement between the executors and the purchaser of the real estate, a portion of the purchase-money has been placed with this company in order to hold the purchaser harmless against this lien. The plaintiffs in this case are seeking to foreclose their lien, to follow this fund, and subject it to the satisfaction of their lien. It is insisted, however, that the sale of this land by the executors did not divest the lien of the plaintiffs, and that they have an ample remedy by the foreclosure of their lien and sale of this land. Where an administrator sells land under a proper order of the court of ordinary, liens thereon are divested and transferred to the fund. Civil Code (1910), § 4029; Newsom v. Carlton, 59 Ga. 516. This law is applicable to executors. Civil Code (1910), § 3892. When land has been sold at an administrator’s sale, and a lien thereon transferred by virtue of this section to the proceeds, such lien should be paid from .such proceeds. In such circumstances the plaintiffs could proceed to assert their equitable right to have their lien paid out of the proceeds of the executors’ sale. They can not obtain a general judgment de bonis decedentis, but can only claim that the fund arising from the property, or so much thereof as might be necessary, should be applied to the payment of their lien, subject, however, to have legitimate defenses raised as to the legality and priority of their attorney’s lien, or the amount due thereon. Moughon v. Masterson, 140 Ga. 699 (79 S. E. 561). This fund not being in the hands of the executors, but in the Atlanta Title & Trust Company, the plaintiffs are proceeding to secure a decree fastening their lien on this fund and subjecting it to the payment of their lien. They are thus seeking substantial equitable relief against the defendant resident in Eulton County, and the superior court of that county has jurisdiction.

In view of what is said above, the petition set forth a cause of action, and sought substantial equitable relief against the defendant which resides in Eulton County. It follows that the trial judge did not err in overruling the demurrer to the petition.

Judgment affirmed.

All the Justices concur.