McWilliams v. Jenkins

SOMERYILLE, J. The bill was originally one for specific performance, brought by the intestate, Harrison, against the appellees, as heirs of one Jenkins, to compel the conveyance of certain lands. The proof in the cause showing a failure of title to a portion of the land, constituting the homestead of the decedent and his family, which was attributable to an incurable defect in the instrument purporting to alienate it, the chancellor rescinded the contract of conveyance, and made a decree on September 17, 1877, the ultimate purpose of which was to put the parties, or their privies in estate, in statu quo, as far as was practicable under the circumstances. This decree was affirmed, [486] on appeal taken to this court, at the December term, 1880, Jenkins v. Harrison, 66 Ala. 345. The decree here appealed from was rendered October 11, 1882. The first decree did not go further than to declare a cancellation or rescission of the contract of sale, and to refer to the register the ascertainment of certain amounts and valuations, a knowledge of which was necessary in definitely fixing the mutual rights of the litigants. The decision of all other questions was expressly reserved until the coming in of the register’s report. It is noticeable, th at the opinion of the chancellor, accompanying the first decree, went much further than the decree itself, which is a separate and distinct paper. But this fact is obviously immaterial, as it was the decree, and not the opinion of the chancellor, which this court affirmed on the last appeal. Attention is called to this feature of the case, because it is insisted in argument that this supposed repugnancy now affects the merits of the present decree. It is enough to say, that we see no conflict in the two decrees, whatever may be said of the first opinion by a former chancellor. It is not denied, by either party, that upon the rescission of the contract in question, the court possessed the power, as was also its duty, to secure the purchase-money paid by the vendee, Harrison, by giving alien, or creating a charge on the land, for its re-payment. This right to protect vendees, by thus securing them in the reimbursement of their purchase-money, advanced upon the faith of the contract, is well established in our system of equity procedure, and constantly invoked in the every-day practice of the courts.—Aday v. Echols, 18 Ala. 353; Fry on Specif. Perf. § 939; Sugden on Yendors, 62-63. This lien is properly confined, however, to such lands as the vendor has the lawful right to convey. The point of contention in this case is, that while the chancellor declared such a lien in favor of the appellant, as the personal representative of Harrison, it was made subordinate to a prior lien given to the heirs of Jenkins, for the rents of the homestead property, which were virtually collected by Harrison, and appropriated to his use, while he -was in possession of the land, claiming it as purchaser under the original contract of sale, proved to have been made by Jenkins, we are of opinion that the views of the chancellor were correct. These rents, amounting to the sum of two thousand dollars, as is shown by the report of the register, were the moneys of the defendants. They had accrued from the use and occupation of the homestead, to which Harrison had no title, or lawful claim of any kind. They were appropriated by him in the payment of his claim against the estate of the vendor, Jenkins, and thus went in exonera [487] tion of tbe hundred and sixty acres of land, upon which the charge or lien is declared. The land was thus relieved, pro tcmto, of an incumbrance upon it. The chancellor merely decrees that the heirs of Jenkins, whose money went to pay this charge, shall be subrogated to Harrison’s lien for their reimbursement. The payment of the incumbrance was thus adjudged to be rather a purchase than an extinguishment, which is the very essence of every similar subrogation. This equity does not originate in contract, or agreement between the parties ; but it is the mere creature of equity, based on principles of justice, and designed to prevent its failure. It is nothing more than the putting by transfer one person in the place of another, and investing the former, in promotion of fair, dealing, with the equitable rights of the latter. — Sheldon on Sub-rogation, §§ 1, 11, 62, 206, 209, 212-13. There is no force in the suggestion, that this view operates to give mere donees a precedence over a creditor of the decedent. If the heirs of Jenkins had inherited property liable to be charged with the debts of the decedent] the argument might be sound. But the land, from which the rents in question accrued, was a homestead, which was exempted from liability to legal process for the payment of the decedent’s contract debts of any character. The conveyance of such property by a husband to a member of his own family, even though voluntary, has been held not to be fraudulent.—Lehman v. Bryan, 67 Ala. 558; Fellows v. Lewis, 65 Ala. 343. The reason is, that the creditors have no right to pursue exempted property for the satisfaction of their claims, and hence their legal rights can not be prejudiced by a conveyance of it.—Shirley v. Teal, 67 Ala. 449; Thomp. on Homesteads, §§ 411-12; Bump on Fraud. Conv. 268. This reason becomes still more forcible, when there is a devolution of title effected bv operation of law, instead of by act of the owner, made manifest by a voluntary conveyance. The lien, which an attorney at law has for his stipulated or reasonable fees, is limited to the judgment recovered in the particular cause in which the professional services were rendered. He is regarded as an assignee of the judgment or decree, pro tanto — to the extent of his fee — from the date of its rendition. It is consequently subordinate to all counter claims, or sets-off, existing at the time, including, of necessity, such as are allowed prior to the rendition of the judgment.—Jackson v. Clopton, 66 Ala. 29; Ex parte Lehman, Durr & Co., 59 Ala. 631; Warfield v. Campbell, 38 Ala. 527. It does not extend to the lands, or other like property, which is the subject-matter of litigation belonging to the client.—Hinson v. Gambie, 65 Ala. 605. The solicitors of the appellant would be entitled to no lien, extending beyond the amount of the decree [488] obtained for their client. Their rights are guaged by, and must be commensurate with his. The decree of the chancellor is affirmed. BbicKELl, C. J., dissenting.