Crutchfield v. . Foster

Baenhill, J. The defendant alleges and contends that the judgment pleaded by him under which his land was sold by the sheriff and purchased by the plaintiff is an attempt to impose a lien on his property for the security of an attorney’s fee and is a nullity. No issues were submitted to a jury. The cause was apparently disposed of by the court below as upon a motion for judgment upon the pleadings, which admits the matters set up in defense, but challenges the sufficiency thereof to bar plaintiff’s recovery. Barnes v. Trust Co., 194 N. C., 371, 139 S. E., 689; Pridgen v. Pridgen, 190 N. C., 102, 129 S. E., 419; Churchwell v. Trust Co., 181 N. C., 21, 105 S. E., 889; Oldham v. Ross, post, 696. The common law rule, which applies in this State, is stated in 2 R. C. L., page 1077, as follows: “The weight of authority is to the effect that, in the absence of statute, the charging lien of an attorney for compensation for professional services does not attach to the land involved in the .litigation in which such services were rendered. This rule applies in eases where the attorney has successfully prosecuted a suit in equity to establish title to land; where he has recovered land in an action of ejectment ; and where he has successfully defended the right and title to land against an unjust claim or an unwarranted attempt to subject it to an alleged lien or liability.” In Midgett v. Vann, 158 N. C., 130, the Court says that: “Counsel fees in favor of the successful party were abolished *553 by statute in 1871. In many states attorneys’ fees are allowed tbe successful litigant, but it is not so in tbis State and in some others, nor in tbe Federal Court. R. R. v. Elliott, 184 U. S., 530; Hyman v. Devereux, 65 N. C., 589; Stringfield v. Hirsh, 94 Tenn., 425. Tbe opinion in tbis latter case is an elaborate discussion of tbe subject and gives tbe states where attorneys’ fees are recoverable and those where they are not, placing North Carolina in tbe last-named list. See Donlan v. Trust Co., 139 N. C., 212.” In Mordecai v. Devereux, 74 N. C., 673, it is said: “Tbe question is decided. Patterson v. Miller, 72 N. C., 516. Tbis Court has never interfered between attorney and client in making allowances for professional services, and we are not inclined at tbis late day to assume tbe power to do so.” Ellington v. Ellington, 204 N. C., 785, 168 S. E., 672; Roe v. Journigan, 181 N. C., 180, 106 S. E., 680. In bolding that tbe court is without authority to impose a lien upon lands to secure an attorney’s fee allowed by tbe court, we are not inadvertent to tbe decision in Casket Co. v. Wheeler, 182 N. C., 459, 109 S. E., 378, where it appeared that there bad been an equitable assignment of a part of tbe recovery to tbe attorney and where it further appeared that a petition in tbe cause was filed by tbe attorney and tbe client was given a full opportunity to be beard. In tbe case under consideration it does not appear that there was any agreement between attorney and client, or that tbe attorney intervened in tbe cause, giving bis client an opportunity to be beard on tbe attorney’s claim. Apparently tbe court fixed tbe fee and imposed a lien without notice. Even if it be conceded that tbe court bad power to impose a lien upon tbe land of tbe defendant in favor of bis attorney, as tbe pleaded judgment attempts to do, plaintiff’s deed is a nullity. Tbe judgment provides that “if said Jones Foster fails to pay said lien within 60 days tbe said property shall be advertised and sold as provided by law for tbe foreclosure of other liens.” Under tbis judgment there was no authority in tbe clerk to issue execution thereon, or in tbe sheriff to sell said property under execution. Furthermore, tbe judgment undertakes to impose a lien only upon one lot 55 feet by 200 feet. In addition thereto tbe sheriff undertook to sell another tract containing 1% acres. Tbe judgment set out in tbe defendant’s further answer is void in so far as it undertakes to fix tbe fee of counsel for tbe defendant in that cause and to impose tbe same as a lien upon defendant’s property, and tbe plaintiff’s deed executed to him by tbe sheriff pursuant to a sale under an execution issued on said judgment conveys no title to tbe land therein described. Tbe judgment below is Eeversed.