Lovett v. Moore

Atkinson, Justice.

The facts are stated in tbe official report.

1. Tbe lien of the attorney, if any, rests upon section 1989 of tbe code. That section provides that, “Upon all suits for the recovery of real and personal property, and upon all judgments or decrees for the recovery of tbe same, attorneys at law shall have a lien on tbe property recovered, for their fees, superior to all liens but liens for taxes, which may be enforced by said attorneys at law, or their lawful representatives, as liens on personal and real estate, by mortgage and foreclosure, and the property recovered shall remain subject to- said liens, unless transferred to tona fide purchasers without notice.” It has long been tbe established law of this State, that the attorneys at law of a plaintiff suing for and recovering land, are entitled to the lien provided for in the language above quoted. See Wilson v. Wright, 72 Ga. 848, and cases there cited. See also Fry et al. v. Calder et al., 74 Co. 7. In tlie rendition of tlie last cited decision, this court appears to have overlooked the provision in the same section of the code which we are now about to quote, and to have rested its conclusion upon the idea that tlie successful defense of a suit wherein it was sought to> subject the property of an owner of land to the lien of certain alleged mechanics’ lien fi. fas. was equivalent to a recovery, and therefore the lien of the attorneys in that case was allowed; but the section of the code above referred to expressly makes provision for such a case, for it is provided therein that “The same liens and modes of enforcement thereof, which are allowed by this section, or by preceding laws, to attorneys at law who are employed to sue for any property, upon the property recovered, shall be equally allowed to attorneys at law employed and serving in defense against such suits in case the defense is successful.”

Under the facts of the present case, if, instead of representing the defendant in the ejectment suit, the plaintiff in error had represented the plaintiff, he would be entitled to the lien for his fees claimed in the present case, and if, as representing the plaintiff, he was entitled to such a lien, then by express provision of the law, as last above quoted, he is entitled to a lien, he having successfully represented the defendant.

2. Nor can his lien thus allowed be defeated by a transfer of the property by the defendant pending the litigation. A purchaser, under such circumstances, takes with notice of, and consequently subject to the inchoate right of the attorney whose claim of lien is ultimately established by a judgment in favor of his client. In the case of Fry v. Calder, above cited, it was expressly ruled that lis pendens was such notice as would prevent one from becoming an innocent purchaser from the client so as to defeat the lien of the attorney; and where, as in the present case, the right of an attorney to a lien is set up, and he proceeds thereafter to establish the same in the manner pointed out by law, he cannot be defeated by an adverse' claim alleged to exist by virtue of a •conveyance from the client, made pending tire litigation out of which the lien of the attorney sought to be enforced arose. It is unnecessary for the purposes of this case to inquire whether the power of sale provided for could b.e still exercised by tire administrator of such purchaser.

Judgment reversed.