Blackburn v. Clarke

Snodgrass, J.

The bill and amended bills in this cause were filed to set aside certain levies and sales made under attachment and decree of the Chancery Court and execution issued from the Circuit Court. The levies and sales now in controversy upon this appeal were of two tracts of land described as the seventy-five-acre tract and seven-acre tract, and certain town lots in Liberty, Tenn., they having been decreed to be void, and Complainant Blackburn alone appealing. The cross-bill of • Clarke sought to have this satisfaction of his decree and judgments set aside in the event *508 tlie sales were void, and to subject the land to sale in satisfaction of his judgment liens. His title to the seventy-five-acre tract accrued in this way.

In a Circuit Court proceeding by Clarke against Complainant Blackburn and Martin Eoutch et col., attachments had issued and been levied upon Eoutch’s land and upon the seventy-five acres belonging to Blackburn. Blackburn and others filed a bill in the Chancery Court enjoining that suit, and such proceedings were had that on the 2d of August, 1873, Clarke obtained a decree against the complainants in that cause for $1,143.46 and cost, and the land attached in the Circuit Court case was ordered sold to satisfy the decree.

The sale was made, and Clarke purchased the the Eoutch lands at a price which satisfied onelialf of the amount of his decree. ITe also, on the 22d November, 1873, at the price of $590.36, bid off the seventy-five acres. As attorney and agent of Jane Turney, a judgment creditor of Blackburn, he also bid $682.20, full amount of that judgment on this land, and has taken a Sheriff’s deed.

It turned out (as alleged in one of the amended bills and proven) that Blackburn had no legal title to the scventy-five-acre tract, he having only a title bond therefor. So of course Clarke got no title. The Chancellor so held, but he decreed .(setting aside satisfaction of decree and judgment to the extent of the bids) that Clarke had a lien on this laud for the amounts stated.

*509 This was error. Clarice’s decree was not a lien, nor did lie acquire any by virtue of liis levy of attachment, because Blackburn bad only an equitable interest, and tbe bolder of tbe legal title was not before the Court in either case. New Code, § 3694, § 3698; Lane v. Marshall, 1 Heis., 30; Hillman v. Werner, 9 Heis., 586. Nor could satisfaction of tbe decree and judgment be set aside because tbe proper parties were not all before tbe Court, Blackburn and Clarke being the only parties in this cause, and there being other judgment defendants in decree and judgment whose satisfaction was set aside. Humberd v. Kerr, 8 Bax., 291 .

As to this tract complainant was entitled to recover, so far as these objections go. But Blackburn was a party to tbe decree confirming Clarke’s sale. He made no such question against the levy in that case. lie did not appeal from tbe decree, but acquiesced in it, and subsequently rented tbe land from Clarke; and, coming into this Court for equity, lie must do equity. He will not, therefore, be allowed to take tbe land from Clarke without satisfying Clarke’s real demand against it — that is, tbe amount bid at tbe Chancery Court sale and tbe amount of tbe Turney judgment, which Clarke in fact paid, as found by tbe Chancellor. Blackburn is, under tbe circumstances, estopped from claiming more. His litigation as to this tract is about bis equitable interest only, as be does not bi’ing before tbe Coui’t tbe bolder of the legal title.

*510 The town lots and the seven-acre tract were levied upon to satisfy an execution issued upon a judgment Clarke recovered in the Circuit Court against Blackburn for $2,000.10 on 31st May, 1869.

The sale of the seven-acre tract and the lots was void because all sold together; but the Court correctly decreed that they (so far as undisposed of by consent) should be sold to effectuate the lien fixed by the judgment and levy.

Clarke’s judgment was- in a slander suit, and professing to desire no more of it collected than was sufficient to pay his fees, cost, and expenses in that suit, and this consequent upon it, he in Court remitted all of the recovery except enough to cover these items, and in the account ordered they were estimated.' Complainant excepts to this basis as fixing upon him an improper liability. His objection would be good were it not for the fact that they do not aggregate the sum of Clarke’s original judgment and interest; and hence he does not, upon such, basis, have to pay as much as Clarke was entitled to recover, and within that limit Clarke can have his recovery decreed and appropriated as he sees proper. Provided it,does not increase complainant’s liability, he cannot complain.

The result of this settlement of the equities of the parties is the same in effect as that reached by the Chancellor, though based in part upon different conclusions of law, and the decree ordering the sale upon default of payment of amount decreed is affirmed.

*511 The cause may be remanded for execution of decree. Costs of this Court will be paid by Appellant Blackburn.

His solicitors insist on asserting a lien on the recovery superior to that of Defendant Clarke, but this cannot be allowed. Their recovery is conditioned upon his, and they can have no superior right to their client as against defendant. What their client in fact recovers. will depend upon the result of the sale. If the entire proceeds are appropriated in satisfying the decree, there 'will he no recovery upon which their lien can rest.

The attorney’s lien is not upon any incidental recovery of title and change in its condition pending the suit, but ■ upon the recovery consequent upon all the decrees rendered.

There is nothing in the case cited by counsel (Wright v. Dufield, 2 Bax., 218 ), when properly understood, contrary to this view. If so, it would not be allowed to stañd as authority. In that case a married woman had attempted to convey her land. She received the purchase-money, but by reason of defective acknowledgment the conveyance was void. The' conveyance was made and the money was received 10th August, 1868. On the 3d of September, 1868, she filed her bill. No rents had then . accrued. The defendants answered, and by cross-hill insisted upon their right to have the amount paid her declai;ed a lien on the property. The land was put into the hands of a receiver, and rented out. When complainant recov *512 ered, and before sale, her solicitors asked tire Court to declare a lien on tire land. The Court declined to do this, but gave them a lien upon the rents “ since the property was taken out of the hands of complainant,” upon the theory that the lien for the purchase-money was only upon the property, and did not extend to the rents.

It is not necessary to express any opinion as to the correctness of that holding upon the facts. It is sufficient to say that in this case the complainant, who is sui juris, has submitted to a decreé vesting the right to his interest in the land in controversy, and the right, to take rents and profits, in Clai'ke; has for years acquiesced in his ownership and possession, allowing him to receive the rents, and now will not be permitted to recover either without satisfying Clarke’s debt. Not being himself allowed to do so directly, he cannot do it indirectly for counsel fees.

Upon any surplus arising from the sale ordered, after satisfying defendant’s decree and cost, counsel for complainant will be entitled to a lien.