Fowler v. Lewis's Adm'r

14 S.E. 447, 36 W. Va. 112

• Court: West Virginia Supreme Court
• Decided: February 12, 1892
• Status: Published

Opinions

BRANNON, Judge:

On the 13th of March, 1861, James L. Carr instituted, in the Circuit Court of Kanawha county, a chancery suit against the administrator and heirs of John Lewis, deceased, alleging in his bill that he had recovered a judgment for one thousand five hundred dollars, subject to certain credits against John Slack, administrator of John Lewis, based on a note made by Lewis; that Lewis died seised of a large real estate in Kanawha and Boone comities, which by his will he devised to his sons Andrew D. Lewis, John W. Lewis, and James Y. Lewis ; that a portion of his personal estate he bequeathed to his daughter, Margery L. Keima, later wife of K; J. Ashby; that all said estate was liable to his debt; and, making the administrator and children of John Lewis, deceased, defendants, the bill prayed that the real and personal estate of said decedent be subjected to the payment of said debt.

The administrator and three of the heirs of John Lewis answered this bill.

In September, 1865, Carlos A: Sperry, as guardian, of the infant heirs of Andrew D. Lewis, deceased, one of the heirs of John Lewis, filed in the Circuit Court of Kanawha county a bill alleging that the interests of the infants, as well as of the other heirs, would be promoted by a sale of certain lands on Bull creek, in Boone county, of which John Lewis died seised, and that a sale of it for forty five thous- and dollars could be made, and prayed that the said land might be sold, and the proceeds, after paying debts of John Lewis and the dower of his widow, be divided among his heirs. This bill of Sperry,'guardian, made the three living heirs of John Lewis and his widow and the infant children of the dead heir, Andrew D. Lewis, defendants.

The three living heirs of John Lewis and his widow filed their joint answer, admitting the allegations of the bill, and uniting in its prayer that said land be sold. An answer for the infants by a guardian ad litem, was filed.

By power of attorney dated the 24th of November, 1865, the living heirs of John Lewis empowered Thomas L. Broun to sell at fifty two thousand five hundred dollars the land on Bull creek, in Boone county. On the 8th of December, 1865, these three living heirs of John Lewis and his widow and the widow of the dead heir, Andrew D. Lewis, and Carlos A. Sperry, guardian of his children, filed in the suit of Carr v. John Lewis’s Adm’r and, Heirs, a petition representing that they had partially contracted with parties in New York for the sale of said land for fifty two thousand five hundred dollars on terms specified, and praying that they be permitted to complete the contract of sale, and that the moneys arising from the sale be deposited in the hands of the receiver of the court, to be disbursed among the creditors of John Lewis', deceased, and among petitioners as might thereafter be determined by the court, alleging that the sale would promote the interest of the children of Andrew D. Lewis, and praying that their interests be sold along with the interests of the others, and that Sperry, their guardian, join in the deed of conveyance, and that, on payment to the receiver of fifty two thousand dollars, a deed conveying the land be made to the purchaser.

On the 8th of December, 1865, depositions were taken in the said case of Sperry, guardian, to prove the advisability of selling the land. On the 19th of December, 1865, a decree was entered in the cases of Carr and others v. The Adm’r of John Lewis and others, and Sperry, Guardian v. Heirs of John Lewis and others, hearing the causes on their papers, and said petition asking leave to make such sale, and such leave was granted with consent of parties, and the petitioners and Sperry, guardian for the infants, were authorized on payment of purchase-money to the receiver, to convey the land. The decree declares itself to be a consent decree, and that its object was to effect a sale, “and to subject the proceeds arising therefrom, when paid into the hands of the receiver, to the rights of the said parties, as the laud is now liable.”

With further consent the decree referred the two causes to a commissioner, to ascertain and report after publication ■(1) of what land John Lewis died seised; (2) what judg-meats were rendered against liim in bis lifetime, and against 'bis administrator; (3) wbat other liens by judgment trust-deed, attachment or otherwise existed on said lands; (4) what judgments had been rendered against John W. Lewis, Margery J. Ashby, James V. Lewis and Andrew D. Lewis, constituting liens on the land; (5) to settle accounts of John Lewis’s administrator.

The parties consenting to this decree were Sperry, guardian of Andrew D. Lewis’s children, Lovell, attorney for Lewis’s heirs, and Sperry, attorney for Carr. Polsley, commissioner under said reference on the 2d of June, 1866, filed a report finding certain debts against John Lewis’s estate, and a judgment of six hundred dollars in favor of Sarah E. Lewis against Andrew D. Lewis and John W. Lewis; a judgment for four hundred and fifty four dollars in favor of Sarah E. Lewis against Andrew D. Lewis; a judgment in favor of James Hewitt against Andrew D. Lewis; a judgment in favor of James V. Lewis against John ’W. Lewis; a judgment in favor of Samuel Lewis, use of Andrew M. Henderson, against John "W. Lewis; a judgment in favor of Boteler & Clagett against John W. Lewis; a trust-deed from John ~W. Lewis to secure Thomas L. Broun, maker, and John M. Doddridge, indorser, of a negotiable note, the proceeds of which were for the benefit of John "W. Lewis; and a trust-deed made by John W. Lewis, to secure Summers & Patton and N. & II. Eitzlmgh a debt — all which were reported as liens on said lands. There were no exceptions to this report, and on the 15th of October, 1866, an order was made simply confirming said report and going no further.

On the 8th of October, 1867, a decree was entered in the Carr suit reciting that John ~W. Lewis, Richard J. Ashby and Margery J. Ashby, Eliza D. Lewis, and Sarah E. Lewis, by their agent and attorney, Thomas L. Broun, filed a report,’ and that it appeared therefrom that acting substantially under a former decree they had given Broun a power of attorney to sell the land, and that Broun had sold it to Andrew J. Bininger for fifty two thousand five hundred dollars, of which two thousand five hundred dollars was to go to Broun as commission under the provisions of the power, and tlie residue to be subject- to the proper decrees of tlie court, and tliat the lieirs of John Lewis aslced for a confirmation of the sale; and that Sperry, guardian of Andrew I). Lewis’s heirs, consented, and confirming such sale, and directing the receiver to collect from the purchaser, Biuinger, the purchase-money when due. Sperry guardian and others signed this decree. No heir of John Lewis did so except John W. Lewis.

On the 13th of November, 1869, a rule was awarded against Biuinger to show cause why the laud should not be resold, behaving failed to pay purchase-money; and on the 21st oí June, 1870, a decree was entered directing the resale of said Bull Creek land, six thousand and six acres, appointing Nicholas Fitzhugh special commissioner to make sale.

On the 6th of December, 1870, W. L. Cochran, administrator of Sarah E. Lewis, James V. Lewis, Hi chard J. Ashby and Margery, his wife, obtained an injunction restraining Fitzhugh, as commissioner, from selling said land under said decree, but on the 17th of April, 1871, the injunction was dissolved, and an appeal was taken to the order of dissolution.

A decree made the 25th of June, 1872, shows that a certain fund arising from a debt assigned by Andrew Don-nally to John Lewis was applied in payment of the debts against John Lewis’s estate, which had been reported against it by Commissioner Polsley.

On the-27th of June, 1872, an order was made stating that the two causes of Carr v. Heirs of John Lewis, and Cochran, Adm’r etc. v. Nicholas Fitzhugh, which had been pending in the Court of Appeals had been dismissed in the Court of Appeals. They were ordered to be reinstated in the Circuit Court, and, with like consent, those causes were referred to Joseph Rufiher, as special commissioner, to ascertain and report (1) what lands John Lewis died seised of; (2) who were his heirs; (3) how the lands were to be divided, and what part each heir was entitled to; (4) what judgments, trust-deeds or other liens Avere on the lands against the heirs, jointly or separately; (5) the total indebtedness of each heir for A\diich his real estate was bound; (9) what transfers of the real estate had been made by the heirs; (7) to settle the account of John Slack, as administrator cl. b. n. of John Lewis.

On the 1st day of October, 1874, Commissioner Tinffnor filed a report, to which exceptions were taken, and on the 7th of July, 1872, a decree held' invalid three judgments therein reported against Andrew D. Lewis, viz., one in fav- or of James Hewitt, one in favor of Thomas B. Wallace, and one in favor of Sarah E. Lewis for four hundred and fifty four dollars. As the debt of Carr, for which the suit of Carr v. the Heirs of John Lewis was instituted, had been paid, an order made 29th May, 1876, substituted E. M. Fowler as plaintiff therein, and it thereafter proceeded inEowler’s name as plaintiff; and Cochran, administrator of Sarah E. Lewis, having died, an order was made reviving, in the name of Peter Fontaine, administrator of Sarah E. Lewis, the case of Cochran, Adm’r v. Nicholas Fitzhugh.

On the 11th of April, 1884, the two cases of Fowler v. Heirs and Adm’r of John Lewis, and Fontaine, Adm’r of Sarah F. Lewis v. Nicholas Fitzhugh and others, were recommitted to Commissioner Ituffner to report on questions raised by exceptions to his report not already adjudicated, and the liens against the Bull Creek lands, and settle account of John Slack, administrator of John Lewis.

On the 1st of July, 1885, on a petition filed by Fontaine,' administrator of Sarah E. Lewis, and Wallace and Hewitt, a decree was entered setting aside as null and void the decree of the 7th of July, 1882, which had held void, and, as not liens, the three judgments of Hewitt against Andrew D. Lewis, Wallace against Andrew I). Levis, and that for four hundred and fifty four dollars of Sarah E. Lewis against Andrew D. Lewis, and overruled exceptions to Buffner’s report ascertaining these judgments as liens.

On the 14th of July, 1885, the administrator, widow and children of Andrew D. Lewis filed a petition asking that the decree of the 15th of October, 1866, be set aside. That decree, as above stated, confirmed a report made by Commissioner Polsley finding certain judgments against Andrew L>. Lewis as liens on his interest in said land. This petition made no formal parties, but all tire judgment-creditors appeared to it, and objected to its being filed ; but the court allowed it to be filed and, on the 14th of July, 1885, rendered a decree vacating and setting aside the decree of the 15th of October, 18G6, so far as it affected any judgment against Andrew 1). Lewis, and directing Commissioner Ruffner, who lmd the case before him, to inquire into the said judgments and report upon the'question of their validity. This decree contained a clause declaring that the consent-decree of reference of the 19th of December, 1865, should not be'affected by it. John W. Lewis gave a deed of trust on the 19th of November, 1860, on his interest in the Bull Greek land, to secure a five hundred dollar debt to Summers & Patton and U. & II. Pitzhugh; and at a sale under it, on the 5th of April, 1869, Uicholas Fitzhugh and Lewis Summers purchased the entire interest of John W. Lewis in said Bull Greek land, and it was couveyed to them by Thomas B. Swann, trustee. The deed of trust and deed from trustee were recorded in Boone county, the 16th of October, 1872. Lewis Summers conveyed half of his interest to Nicholas Fitzhugh by deed, January, 1872, thus giving Fitzhugli a three fourths interest.

Fitzhugh, being thus interested in John W. Lewis’s share in the land, on the 15th of July, 1885, filed a petition asking that the order of reference of 19th of December, 1865, and the decree of 15th of October, 1866, confirming Polsley’s report under it, be set aside; and on 15th of July, 1885, a decree was rendered stating the tendering of the petition, and that certain creditors of Andrew D. Lewis had objected to it, and overruling their objections, and allowing the petition to be filed, and vacating said decree of 15th of October, 1866, confirming Commissioner Polsley’s report, so far as said decree of confirmation affects the four judgments against John W. Lewis, referred to in Polsley’s report, and leaving those judgments open for future adjudication, and directing that all questions submitted to a commissioner by the decree of 19th of December, 1865, be submitted to Commissioner Joseph liuffner to take evidence, and report on all matters involved in the cause.

On 17th of March, 1890, Commissioner liuftner filed his report under the several orders of reference to him. This report held invalid and as no liens all the judgments filed against Andrew I). Lewis, except a six hundred dollar judgment in favor of Sarah E. Lewis, and all the judgments filed against John "W. Lewis, except one in favor of E. J. Ashby.

Exceptions to this report were filed because of its rejection as liens of nine judgments, and an exception was taken by the representatives of Andrew D. Lewis because the report allowed the six hundred dollar judgment in favor of Sarah E. Lewis against Andrew I). Lewis.

On the 1st of July, 1890, a decree was pronounced which held void and rejected as liens the nine judgments disallowed by Buffner’s report, and also rejected the six hundred dollar judgment of Sarah E. Lewis, which that report had allowed as a lien. The owners of these rejected judgments, Fontaine, administrator of Sarah E. Lewis, and others have appealed from said decrees of 14th July, 1885, 15th July, 1885, and 1st July, 1890.

Nicholas Fitzhugh having acquired an interest in John W. Lewis’s share in the Bull Creek land, as above stated, in his petition filed 15th July, 1885, asserted his right, and on the same day John W. Lewis filed an answer to said petition and afterwards an answer and cross-bill, seeking to overthrow the sale under the deed of trust to Fitzhugh, and other pleadings were filed between them. By decree of 2d July, 1890, the court held that the sale to Fitzhugh was valid, and adjudged to the parties claiming under that sale the right to John W. Lewis’s interest in said land. From said decree of 2d July, 1890, John W. Lewis has appealed.

On January 10, 1871, an agreement was made between James Y. Lewis and Thomas L. Broun, reciting James Y. Ijqwís’s interest in the personal and real estate of his father, John Lewis deceased, and that there was then much litigation respecting it, and giving to Broun for his services, in such litigation one third of all James Y. Lewis’s interest in said estate, and one third of a judgment of James Y. Lewis against John W. Lewis. latter, by deed dated March 6,1883, James I). Lewis, and Sarah E.,his wife, conveyed to Thomas L. Broun a judgment of one hundred and two dollars against JohnW. Lewis, a claim of five hundred dollars against Margery and R. J. Ashby, payable out of the Bull Creek land, and all right, title and interest which James V. Lewis and liis wife held in the Bull Creek land.

On September 17,1888, Broun filed before Commissioner Rufiher a petition alleging, among other things, that he was entitled under said deed to one fourth interest in the Bull Creek land, and to the judgment of one hundred and two dollars against John W. Lewis, and to the claim of five hundred dollars in favor of James V. Lewis against Margery and R. J. Ashby. This petition of Broun asked that out of the purchase-money of the Bull Creek land he should be paid the claims set up in the petition.

On the 27th March, 1889, in court, James V. Lewis and Sarah E. Lewis filed an answer and cross-bill to the said petition of Broun, and Broun was required to answer it; but later the court struck out this answer and cross-bill, and refused James V. Lewis and wife leave to become defendants to Broun’s petition, and overruled Lewis’s motion to strike out of the case the petition of Broun. But a few days later the court made an order in the case of Fowler et al v. Lewis’s Heirs et al, showing that James Y. Lewis and wife tendered tlicir petition, in the nature of an original bill, and ordering it to be filed, and that process issue on it against T. L. Broun and other parties defendant to answer the same. This petition, in the nature of an original bill, on various grounds attacked the agreement of January 10, 1871, between John W. Lewis and Broun and said deed of 6th March, 1883, between Lewis and wife and Broun, and prayed that they be held for naught and set aside.

Afterwards James Y. Lewis and wife filed an amended petition, making new parties. Broun filed his answer, and a litigation was had between James Y. Lewis and wife and Broun touching said Broun’s rights under said contract and deed upon the branch of the cause based on the said petition, in the nature of an original bill filed by James Y. Lewis and wife ; and on 8th April, 1890, a decree was made in the cause as to that litigation, declaring that Lewis and wife wore not entitled to the relief they prayed for, and dismissing their said petition. From this decree James Y. Lewis and wife took an appeal, Avliieh is now pending in tbis Court.

Ruffner’s report, referring to Broun’s’said petition filed before Rnffner, reported that Broun Avas entitled to James V. LeAvis’s entire interest in the Bull Creek lands, to the judgment in favor of James Y. Lewis against John "W. LeAvis, and to a claim of six hundred and eighty tAvo dollars payable out of Mrs. Ashby’s interest in the Bull Creek land, which claim James Y. LeAvis had assigned to Broun; and, James Y. Lewis and wife having excepted to the report, the court entered a decree on 2d July, 1890, which overruled said exception, and confirmed Ruffner’s report in this respect, and declared Broun entitled, as found by the report, to all the proceeds arising from such assignment. From this decree of July 2,1890, James Y. Lewis and wife took an appeal.

John S. Swann tiled, January 18, 1886, petitions numbered 1 and 2, alleging in the first petition, that John Lewis had died owner of a large personal and real estate, leaving a will, which excluded a daughter, Mrs. Kenna, later Mrs. Ashby, from participation in his estate, and that she had brought suit to invalidate the will, and secure an equal share as one of the four children ; and that a decree therein gave her participation in the personalty but excluded her from the realty of her father, including about six thousand acres of land on Bull Creek ; that afterwards, by a compromise, she was accorded a fourth interest in said land ; that he (Swann) was employed as sole counsel to defend, and did defend, the suit so brought by Mrs. Kenna; and he claimed a fee of one thousand, five hundred dollars, and asked that he be allowed said fee out ofthe fund which should come into the hands of the court from the sale of the Bull Creek land.

In the second petition Swann alleged that Joab and Thomas Fowler had, in the year 1858, brought a suit against the estate of John Lewis, seeking to render it accountable to a large demand in favor of the estate of Thomas Fowler by reason of an alleged joint ownership of lands by FoAvler and Lewis, and the sale of lands by LeAvis, and his receiving moneys therefor, held in trust by Lewis for the common benefit of Lewis and Fowler; that be (Swann) had, as attorney for Andrew 3). Lewis in his own right as a child of John Lends, and as administrator of John Lewis, filed an answer and argued the cause in de-fence of said suit; that, while the commissioner reported fifty thousand dollars in favor of Fowler’s estate against the Lewis estate, a compromise decree was entered, giving Fowler’s estate seven thousand five hundred dollars. Swann asked the court to allow him for his attorney’s fee one thousand dollars for such service, and to pay it as a lien out of the proceeds of the Bull Creek land.

Swann filed an amended petition to his petition No. 1, alleging that, in the suit mentioned in petition No. 1, Kenna and Wife v. Lewis’s Adm’r and others, he, as attorney, represented all the defendants, the widow, the administrator and three out of the four heirs; and he added matter not in the petition No. 1, that, in the case of Carr’s Adm’r v. Lewis and others, later prosecuted in the name of E. M. Fowler v. R. J. Ashby and Wife and others, he, as a matter of course, represented the widow of John Lewis, and Andrew D., James V., and John W. Lewis, and Margery Kenna, his heirs, and Andrew D. Lewis, executor of John Lewis, and his successor, and the executor of Sarah E. Lewis, and A. D. Lewis’s administrator, and making a claim against all for his attorney’s fee. Swann filed an amended petition to his petition Flo. 2, alleging that in said suit of Fowler v. Lewis’s Adm’r and others, he represented the widow and all the four heirs of John Lewis, and his executor, Andrew 3). Lewis, and makes his claim for attorney’s fee against, all of them, and against John Slack, administrator d. b. n. of John Tjewis, and against the administrator of Sarah E. Lewis, and .asks that the proceeds of the sale of the Bull Greek land be made liable therefor. • •

The claims sought to be enforced by Swann were contested, and Commissioner Iiuffuer ropoi’ted against them, and the court by decree on July 1, 1890, held that Swann had no lien upon the fund in the hands of the court as the proceeds of the sale of the land nor on the land, and that Swann take nothing by his petitions; and from this decree J. S. Swann has appealed.

APPEAL OE JUDGMENT CREDITORS, EONTAINE, ADMINISTRATOR, AND OTHERS.

Take the judgment of Sarah E. Lewis against Andrew D. Lewis for four hundred and fifty four dollars. The process in the action in which it was rendered was not served, hut returned, “Hot found and no inhabitant,” and there was an order of publication against the defendant as anon-resident, and without appearance a personal judgment was rendered. There was no jurisdiction in the court to confirm the office-judgment, and it is utterly void; for there was no process served nor appearance, and not even attachment of property. Such a judgment is no lion and may be attacked in a collateral proceeding. Houston v. McCluney, 8 W. Va. 135; Capehart v. Cunningham, 12 W. Va. 750; opinion in Wilson v. Bank, 6 Leigh, 574; Wynn v. Wyatt, 11 Leigh, 584; Pennoyer v. Neff, 95 U. S. 715; Gray v. Stuart, 83 Gratt. 351; Underwood v. McVeigh, 23 Gratt. 409; Freem. Judgm. § 495; 1 Black, Judgm. §§ 220, 227; Lamar v. Hale, 79 Va. 147; Wade v. Hancock, 76 Va. 620; Windsor v. McVeigh, 93 U. S. 274; Hahn v. Kelly, 94 Amor. Dec. 742; Cooper v. Reynolds, 10 Wall. 318; Harris v. Hardeman, 14 How. 334.

Even if there be attachment of effects of non-residents, a personal judgment on publication without service of process or appearance-is a nullity, except as to effects attached. O'Brien v. Stephens, 11 Gratt. 610; Black, Judgm. § 231; Cooper v. Reynolds, 10 Wall. 318; Coleman v. Waters, 18 W. Va. 278; Gilchrist v. Oil, etc. Co., 21 W. Va. 115.

Eor the same reasons the judgments in favor of Thomas B. Wallace against Andrew D. Lewis, the judgment in favor of James Hewitt against Andrew D. Lewis, the judgment in favor of James Y. Lewis against John W. Lewis, the j ndgment in favor of Samuel Lewis, for the use of Andrew M. Henderson, against John W. Lewis, the judgment in favor of- James A. Lewis against John W. Lewis, the judgment in favor of James Dolan and S. Chambers against John W. Lewis, the judgment in favor of Thomas B. Wallace against John W. Lewis, and the judgment in favor of Boteler & Claggett against John W. Lewis, are not judgments creating liens. None of these judgments, of their own force, create liens.

But, though, they do not themselves operate as liens, does the decree of reference made by consent, December 19, 1865, directing the commissioner to report all liens against, not only John Lewis, but also his children, and the report of Polsley, reporting certain ones of the above mentioned judgments as valid liens, and the decree of October 15, 1866, confirming that report, operate to make such judgments binding liens ? The order of reference was made in the suit of Carr v. The Adm’r and Heirs of John Lewis, and the suit of Sperry, guardian of the infant children of Andrew D. Lewis, deceased, heard together. The former suit was a bill by Carr to enforce a judgment against the administrator of John Lewis against.lauds and personalty in the hands of his heirs and administrator, asking that such assets of his deceased debtor be subjected to pay his debt. It did not allege or seek to enforce any liens against the heirs of John Lewis; it had no two objects in view, but only the single one just specified. Not apartide of matter did the bill contain of any indebtedness of the children of John Lewis, nor did it ask any relief against them on that score.

A judgment or decree is the sentence and adjudication made by the law, spoken through a court, upon facts admitted or pi'oven. There can be no judgment or decree without matters of fact alleged. Freem. Judgm. § 2; Black, Jndgm. § 1. For want of allegation in Carr’s bill that those persons, who as heirs of John Lewis owned his lands, owed debts constituting liens on the land, and of a prayer for relief as to such debts, if that matter could properly have been put in the same bill, the court itself could have entered no decree for the sale of the land for the debts of such heirs, as it would be void, and, of course, could not make a reference to ascertain such debts. McCoy v. Allen, 16 W. Va. 724; Chapman v. Railroad Co., 18 W. Va. 184; Rickard v. Schley, 27 W. Va. 638; Shaffer v. Fetty, 30 W. Va. 248 (4 S. E. Rep. 278).

The other suit of Sperry, guardian, was a suit under the statute (Code Va. 1860, c. 128) to sell lands of infants; and if we could say that in such proceeding, as incident to sale, there could be an ascertainment of the debts of the father of the infants and a decree therefor, yet there is not allegation or whisper in this bill of any debts owing from Andrew L>. Lewis or prayer for relief as to them. So this suit could not be made a vehicle for the ascertainment and enforcement of liens, even as against Andrew D. Lewis’s heirs, and, of course, not as against his coparceners.

But these considerations do not meet the question as to all the parties touching this order of reference; for we are not to forget that it was a consent-order, consented to by Sperry for said infants, and by an attorney for Lewis’s heirs. Could the guardian make this suit of Carr or his own suit 'a proceeding to ascertain debts against Andrew D. Lewis? I think not. A guardian, under our statute, has not the power even to defend suits against his wards; for infants defend by guardian ad litem. The guardian ad litem did not consent, if he could have done so. Even the answer of a guardian ad litem can not be read as evidence against the infant, and no admissions by him bind the infant. Bart. Ch. Pr. 402; Bing. Inf. 88; Bank v. Patton, 1 Rob. (Va.) 500; Crotty v. Eagle’s Adm’r, 35 W. Va. 143 (13 S. E. Rep. 59); Ewell, Lead. Cas. 235. Acts beneficial to an infant, though unauthorized, arc' adopted and ratified by the law; but when, as here, they are to his prejudice, it is otherwise.

I can not think that the guardian could thus make a suit, which quoad hoc was no suit at all, perform the functions of a regular suit to convene liens of the infants’ father, and thus prejudice their estate. It is not a question of an infant showing cause against a decree that has force, but it is a question of the inherent inefficacy or invalidity of a decree. But, as to the adult heirs, I think their consent to this reference reudered the suit efficient as against them, and made the order of reference perform the usual function of the convention of liens in a suit properly brought for the purpose. They consented to use this proceeding to adjudicate liens claimed to exist, or appearing to exist, on their lands. They, at the same time, answered the bill of Sperry asking a sale of the land, and consented to the reference in both suits. . They did so in order that a sale for a large price might bo effected, which could not be doue until snob clouds should bo removed; and now to permit such adult parties to deny the effect of a consent-order made for their benefit, would be to nullify the effect of solemn consent, which, when made by parties competent, is very potent in law. These adult heirs again consented to a reference, June 27, 1872, to ascertain liens created by them on the land ; thus again and still agreeing to make the suit a means of passing on that matter. So I conclude that, as to the adult heirs of John Lewis these orders of reference are valid, and that the statute of limitations stopped as to liens against them December 19, 1865, but not so as to the infant children of Andrew D. Lewis.

But, though these be valid orders of reference, they did not operate to make void judgments liens on the lands. The question now arises for solution : What was the effect of the order of October 15, 1866, confirming Polsley’s report, which found some of these rejected judgments valid liens upon the land of Andrew D. Lewis and John W. Lewis? Though themselves void, did this order validate them, and is the question of their validity res adjudícala? I think not, and this for two reasons :

(1) The order simply and only confirmed the report, and did not go on to adjudicate and decree that the debts were liens, or that they be paid, or that, unless paid, the land be sold, or that the debts named in the report be paid. Would any commissioner having in his hands money derived from land pay on those debts without further order? Would any one be warranted in paying debts under it? I should think not — the order wanted completion and finahity.

(2) The court afterwards annulled this order on petitions filed for the purpose. If it were a final decree or an appeal-able decree, the order setting it aside would be improper, because too late. What is its character? Decrees are interlocutory or final. Under chancery practice, unaffected by statute, an interlocutory decree may be set aside in some cases on mere motion ; in others, by petition for re-hearing —the distinction between cases where it can be done by motion and where it must be by petition not being clearly defined. Bart. Ch. Pr. 126; Chancellor Taylor’s opinion in Bunks v. Anderson, 2 Hen. & M. 20; Sand. Eq. 690.

In Hyman v. Smith, 10 W. Va. 298, it is held that an interlocutory decree may be reversed without a'billin nature of a bill of review, if there is sufficient matter to reverse it on the face of the record; but that the new investigation is usually brought on by petition for rehearing when there is no defect to be supplied. This distinction is unimportant here, as petitions for rehearing were filed. But our statute gives some decrees which are in nature interlocutory, under the principles of chancery practice, the quality of finality by making them appealable. Core v. Strickler, 24 W. Va. 693. Such are decrees adjudicating the principles of the cause. If this decree (to call it a decree and not a mere order) be an appealable decree, then it could be reversed only on appeal or bill of review, both of which were barred when the petitions to reverse the decree were filed, in 1885; but if it be not an appealable decree, being interlocutory in nature, the petition for rehearing was not barred, for there exists no statute limiting a petition for rehearing to an interlocutory decree. Bart. Ch. Pr. 126; Kendrick v. Whitney, 28 Gratt. 646; Cocke v. Gilpin, 1 Rob. (Va.) 21. It surely can not be a final decree in its nature, unaffected by the statute making some interlocutory decrees appealable. It is difficult to define accurately a final decree; but I do not think it difficult to decide that this decree is not final, for it is incomplete, and leaves much yet to be done in the case.

As said by Judge Green in Gillespie v. Bailey, 12 W. Va. 80, it is generally conceded that what J udge Baldwin said in Cocke v. Gilpin, 1 Rob. (Va.) 28, is true, viz: “Where the further action of the court in the cause is necessary to give the complete relief contemplated by the court, then the decree upon which the question arises is to be regarded not as final, but interlocutory. I say further action in the cause, to distinguish it from that action of the court which is common to both final and interlocutory decrees, to wit, those measures necessary for the execution of the decree, and which are properly to be regarded as adopted, not in, but beyond, the cause, and as founded on the decree itself, or mandate of the court, without respect to the relief to which the party was originally entitled.”

See collection of Virginia cases, as to what are final and interlocutory decrees, in Manion v. Fahy, 11 W. Va. 493.

So I hold that this order of 15th October, 1866, is not, outside our statute, a final decree. Then is it an appeala-ble decree, though in essential nature interlocutory, under our statute, which gives an appeal from a decree adjudicating the principles of the cause? I am of the opinion that it is not, and for the reason that to be such a decree it must adjudicate all questions raised in the cause by pleadings or otherwise. Shirey v. Musgrave, 29 W. Va. 131 (11 S.E. Rep. 914); Kill v. Als, 27 W. Va. 215.

But suppose I am wrong in regarding the order of October 15, 1866, as not final in its nature and nou-appealable; but that it is an appealable decree. Then, also, are the two decrees of the 14th and 15th of July, 1885, reversing that order, appealable decrees, and appeal from or- bill of review to them is barred; and they being appealable decrees, and an appeal from them barred, this appeal from the decree of July 1, 1890, would not bring them up to be considered with the last decree, and we could not review those decrees. Hoy v. Hughes, 27 W. Va. 778; Lloyd v. Kyle, 26 W. Va. 534.

So in fact, whether right or wrong, there stand those two decrees in July, 1885, reversing and vacating said decree of October 15, 1886; and they are not nullities, even if erroneous, but, in legal effect, reverse and vacate that decree, and it has no longer any operation; for a reversed or vacated decree does not constitute an estoppel — on it no plea of res ad judicata can rest. 2 Black. Judgm. §511;Freem. Judgm. § 333.

Thus I reach the conclusion that said decrees do not validate said judgment, or estop the judgment-debtors from assailing them, and I concur with the circuit court in disallowing them as liens.

Row, as to the judgment of Sarah E. Lewis against Andrew 1). and John W. Lewis for six hundred dollars, reported as a lien by the commissioner, but rejected by the court. It is a valid judgment, as the defendants appeared by demurrer and ■ plea in the action in which it was rendered; but, so far as it concerns Andrew'-1). Lewis, as the order of reference of 1865 did not operate as to bis infant children, it is barred; but, as it did operate to stop the statute as to John W. Lewis, it is not barred as to him. The only execution on 'it was returnable at March rules, 1858.

The other judgments against Andrew I). Lewis rejected by the court are for same reason barred. ' The reference was made in the Carr suit and the Sperry suit. Of course, the Carr suit was not such a suit as per se to stop the statute from its commencement as to debts of the heirs, though it might have had that effect as to debts of John Lewis. The Carr suit "was brought in 1861. The administrator and other heirs of John Lewis liled an answer; but, as Andrew was dead when it was filed, his name is not mentioned in it. ILis heirs were never made parties to it, by renewal or otherwise. Their presence as parties to the Sperry suit would not make them parties to the other suit. Even if their consent by guardian could make them parties, their presence as parties would be unavailing to render the reference valid, there being nothing in either bill as to debts of their father. "We find no error in this appeal, except in the rejection of Sarah E. Lewis’s judgment for six hundred dollars.

JOHN w. lewis’s appeal.

It is urged against the right acquired by Hicholas Fitz-lmgh to the interest of John W. Lewis in the Bull Creek land, by the sale under the deed of trust from Lewis, that that sale was made April 5, 1869, and that the proceeding must have conformed to the Virginia Code (Ed. 1860, c. 117, § 6) and not to §§ 6, 7, c. 72, Code 1868. It is not specifically pointed out wherein there was a departure from the Code of 1868, but I presume that it was as to notice of sale. Both Codes required a cash-sale; neither prescribed a place. It is to be presumed that the trustee conformed to law except wherein it appears he did not. Lallance v. Fisher, 29 W. Va. 512 (2 S. E. Rep. 775). The deed of trustee recites that the sale was made “after due publication of time, place, and terms of sale for four successive weeks in the West Virginia Journal, a newspaper published in Kanawha county.” The Code of Virginia required the sale to bo after “having first given rea^nable notice of the time and place of sale,” leaving it to the trustee to determine what was reasonable notice, under a sound discretion; and we think this notice a reasonable and fair notice.

But the code of 18(38 required notice to be posted thirty days before sale on the front door of the court-house of the county wherein the land lies, and at three other public pilaces in the county, one near the premises,,and a copy served on the grantor, and the notice to contain particular elements. The notice here does not conform to that Code. But which Code governs ? Serious question could be made whether the Code of 1868 would be valid as to prior deeds of trust, if it had expressly applied itself to them ; because a deed of trust or mortgage is a contract, and the law in force when it is made forms a part of it. Wade, Retro. Laws, § 118. In Taylor v. Sterns, 18 Gratt. 244, it was held that a statute staying collection of debts for a limited time was unconstitutional as to prior deeds of trust.

I know that it will be said that this change is only as to the remedy or mode of procedure, and that the legislature is able to modify remedies, so it leave a reasonable and adequate one. Certainly this is and ought to he true as to judicial remedies; but where, as in a deed of trust, the remedy is stipulated or agreed, it is a more serious question.

. If the deed itself provided certain notice of sale, a new statute could not add a more burdensome procedure, or one causing substantial delay. But it is not necessary to decide this, for several reasons.

Laws, though relating to remedy, are presumed to operate in futuro, unless plainly intended to act retrospectively. 1 Tuck. Com. Laws, 3; Stewart v. Vandervort (12 S. E. Rep. 736) 34 W. Va. 524; Wade, Retro. Laws, § 298. Again, the Code of 1868 went into operation April 1, 1869, and this sale was made April 5th. Kow, the publication of sale notice was nearly, likely quite completed before the Code. Certainly three weeks’ publication had been made, and we can not say that was not reasonable notice. But even if, as tlie trustee decided four weeks’ publication to be reasonable, we say that period was requisite, we can say that it is not shown that there was not four weeks’ publication before April 1st. Here, then, is a publication finished before the new Gode^ — alega! proceeding which had already worked its effect under the law then iu force, and had accomplished that part of the sale proceeding or steps consisting of notice before the 1st April, and the balance of the proceedings — the sale, its terms, conveyance, and report — were not different under the two Codes. Why shall we say that such publication, thus complete before April 1st, is abortive ?

Moreover, the Code of 1868, in chapter 166, §§ 1,"2, after providing that it should go into force 1st April, 1869, and that all laws in force, of a general nature, on the preceding clay, should stand repealed, provided that such repeal, except when otherwise iu that Code provided, should “not affect any act done * * * or any right established” before the 1st April, save only that proceedings thereafter had should conform, as far as practicable, to that Code. I think this would save, of itself, the act done iu the completed publication.

Another argument against this'sale is that it was made when incumbrances hung over the property. At its date a cloud of incumbrances impended over it. There was the suit of the Howlers against John Lewis’s heirs, in which an attachment for a large amount had been issued for a debt of John W. Lewis’s father ; there was the pending suit of Carr to subject the land to a debt of the father; and there were those judgments against John W. Lewis, which were docketed, and which were ordered to be convened by an order of reference for enforcement against this land in the Carr suit; and there was the suit of Mrs. Kenna to participate in the land, and lessen John W. Lewis’s share. Under these grave and heavy clouds lowering over the land, and depreciating the value of the property, had John W. Lewis sought hi time to set aside said sale, I have no doubt he would have succeeded, under principles found in 2 Tuck. Com. Laws, 106; Rossett v. Fisher, 11 Gratt. 492; opinion, Spencer v. Lee, page 188 of 19 W.Va., citing many authorities.

Gross inadequacy of price is urged as a ground to invalidate the sale ; but, under the clouds over the land threatening it with subjection to very large amouuts of money, it is difficult to say that, as things then were, the price was inadequate. But John W. Lewis took no steps to vacate the sale for non-conformity of the sale to the Code of 1868, or inadequacy of price, or because of clouds on the land, until July 15, 1885, more than fifteen years after the sale, and after Fitzhugh had given deeds of trust on the laud. This long acquiescence, this laches, will defeat his claim to overthrow the sale. It is not a question of possession, as suggested by counsel, but of acquiescence and laches. Vigi-Lantibus non dormientibus java subreniunt, is a favorite rule of equity. Nothing calls it into activity but good conscience, good faith and reasonable diligence. ‘Where these are wanting, the court is passive, especially when rights of third parties may be prejudiced. 1 Bart. Ch. Pr. 90; Trader v. Jarvis, 23 W. Va. 100; Connell v. Connell, 32 W. Va. 319 (9 S. E. Rep. 252). Equity has always refused its aid to stale demands, wholly independent of statutory provision, where the party has slept upon his rights and acquiesced for a great length of time. Nothing can call a court of equity into activity but conscience, 'good faith and reasonable diligence. 1 Pom. Eq. Jur. §§ 418, 419. So strong is this principle that it overcomes that favorite maxim of equity, “Equity will not suffer a wrong without a remedy,” (1 Pom. Eq. Jur. §424) and under it an equity otherwise superior will be postponed to a subsequent interest acquired by another (2 Pom. Eq. Jur. § 687).

In Dryden v. Stephens, 19 W. Va. 1, it was held that, where a purchaser under a deed of trust has sold to an innocent party, the sale can not be set aside because the sale was for a grossly inadequate price, and that where a party waited four years before suing to set it aside for want of advertisement, and an innocent'purchaser was involved, it can not be set aside. See Whittaker v. Improvement Co., 34 W. Va. 217 (12 S. E. Rep. 507) and cases cited as to laches.

No fraud, concealment or obstruction is shown to excuse this laches, and such excuse must be shown. Wagner v. Baird, 7 How. 234. Fitzhugh did not become a party to this suit until July 15, 1885, aud could not be affected by it, because there was in the pleadings no allegation or denial of his right. The mere fact, that Polsley reported his deed of trust as a lien, neither he nor his trustee being a party, could not affect him, Bilmyer v. Sherman, 23 W. Va. 656, and for the additional reason that the suit was not, for reasons above stated, such as to affect his rights by a reference. Ashby and wife did tile a bill, now lost, which appears to have been an attack on Fitzliugh’s right, but it was dismissed on demurrer, 22d of November, 1871, and a bill of review to the decree of dismissal was dismissed July 1, 1885, and the decree of 22d of November, 1876, reaffirmed, and appeal from both is barred. But this reference to Ashby’s suit is useless, as he is not appealing, and it can not help John W. Lewis.

It is scarcely worth while to say that the injunction by Cochran, administrator, to enjoin Fitzhugh from selling as commissioner the Bull Creek land under decree in the Carr case, and which was dismissed, could not make Fitzhugh a party to the Carr suit, because it was against him only in his character as commissioner; and for a person to be considered a party to a suit, or be bound by a decree in it, he must have been before the court in that capacity in which he is sought to be bound. Black, Judgm. § 536;Freom. Judgm. § 156. Fitzhugh, special commissioner, is not Fitzhugh, the individual, in his own right; and Cochran was a foreign administrator, not entitled to sue.

The claim that Lewis was a Confederate soldier is unavailing. Chapter 28, Acts 1872-73, would exclude only less than two years; and the pleading setting up that fact is not verified; and anyhow, if Lewis could not take the suitor’s oath, it is not proven or alleged that Fitzhugh could take it, and, if he could not, he could not have required it of Lewis, and the statute of 1872-73 would not apply.

It is contended that, as Fitzhugh was attorney for J ohn W. Lewis, his purchase is invalid. If he was attorney for Lewis iu defending his interest in this suit, it would not preclude his buying; but he was never attorney for John W. Lewis in this suit. The fee for which the deed of trust was given was in a wholly distinct matter, unconnected with this land. Nor was he attorney in this litigation in defence of John Lewis’s estate, as shown by John Slack, its administrator, in his deposition. So I see no reason to overthrow the Fitzhugh purchase at this late clay. But I remark that the judgment of Sarah E Lewis against Andrew D. Lewis and John W. Lewis for six hundred dollars with interest and costs, takes precedence over Fitzhugh as to John W. Lewis’s share in the proceeds of the land, because that judgment is older in date, and was docketed in Boone before Fitzhugh’s deed of trust was recorded there.

APPEAL OF JAMES V. AND SARAH E. LEWIS.

Thomas L. Broun filed his petition with Commissioner Buffner while executing an order of reference to ascertain liens on hinds of James V. Lewis and others, claiming the whole of James Y. Lewis’s share in the Bull Creek land, and a judgment in favor of James Y. Lewis against John W. Lewis, and a claim against Margery Ashby by conveyance from James Y. Lewis. The petition made no person defendant, asked no process, and yet proposed to have decreed to Broun large property interests of James Y. Lewis, which, on the face of the record, as it was before the presentation of the petition, would be decreed to Lewis.

A petition can only be filed by leave of court, and an opportunity must be given to any party in interest to answer it. All petitions, except those which are of course, require service on all parties interested. Bart. Ch. Pr. 843; Walter v. Chichester, 84 Va. 723 (6 S. E. Rep. 1).

Here is a stranger to the record coming in with new matter, asking, in effect, a decree against a defendant, or to be substituted to his right. Such an order is not one of course. It asks to have assigned to Broun real estate of James Y. Lends. If any petition would require process or give right to defence, this would. But Lewis and wife appeared to this petition, and filed an answer, which was afterwards struck out, aud they were refused the privilege of defending it. It is true, they were allowed to file a petition in the nature of an original bill, contesting Broun’s right; but the court went onto decree to Broun under his petition all rights he claimed in it. Surely, if it could be used, as it was, to introduce facts on which James Y. Lewis’s rights were diverted from him to Broun, Lewis ought to have been allowed to make defence to it. It seems to me that this was taking a man’s property by judicial action without giving him a day in court or opportunity to be heard, and that the error is more signal in the fact that Lewis asked to be heard, and had filed a defence to the petition, which was struck out. This is error.

The United States Supreme Court has said that if aman be assailed in court he has a right to defend. The liability and right are inseparable. And-where an answer of a party defending was struck out, the court said, and it could not hesitate on the question, that a judicial sentence under such circumstances would be contrary to first principles of the social compact and the administration of justice. Veigh v. U. S., 11 Wall. 267. And the Virginia Supreme Court, where there -was a decree after answer stricken out and a refusal to allow a defence, held the decree a nullity. Underwood v. McVeigh, 23 Gratt. 409. The right to defend when sued was said by Chibe Justice Mahshall in The Mary, 9 Cranch 144, to be “a maxim of natural justice and universal application.” Of course, this does not mean that a court can not rule out an insufficient pleading.

We have not-this answer of Lewis in the record; but there is an order, after the answer was struck out, refusing him leave to become a defendant to Broun’s petition. I must not omit to say, and I take pleasure in saying, that the judge of the Circuit Court intended no denial of justice to Lewis, and acted from pure motives. He simply meant, as I suppose, that Lewis could not in that mode assail the deed from Lewis to Broun, but must do so in a more formal manner, and allowed Lewis to file a pleading, called in the record “a petition in the nature of an original bill,” which may have been proper. But why go on, and decree Broun, on his petition, all he asks therein? On this new pleading, filed by Lewis against Broun, a litigation took place between them, and the court held that Lewis was not entitled to annul said deed to Broun, and dismissed 1ns bill. Lewis at once took an appeal to this Court, and that appeal is now pending here.

*

After said appeal was taken, and the whole matter between James Y. Lewis and wife was pending in this Court, the court below rendered the decree declaring Broun entitled to all the share of James Y. Lewis in the proceeds of the sale of the Bull Creek land, and the debts assigned by Lewis and wife to Broun. We think it was error to decree thereon, for the bill dismissed and the decree of dismissal* were part of the record in this case, and called for a suspension of action on the branch of the case as between James Y. Lewis and wife and Broun.

We say nothing — decide nothing- — -on the merits as between James Y. Lewis and wife and Broun, because they are involved in said appeal, which remains to be decided by this Court; and this decision is without prejudice to Broun’s rights therein. We simply decide that it was erroneous to decree as tlie court did between James Y. Lewis and wife and Broun on Broun’s petition, without allowing a defence to it, and while the controversy between them was pending on appeal in this Court.

Perhaps it was thought that, if the decree should on such appeal be reversed, it would virtually reverse the decree of July 2d, now complained of. This can not be so. That decree and the decree of April 8,1890, are separate. If the latter should be reversed, there would stand the decree of July 2, 1890, from which the appeal now in hand was taken, and it would require an appeal to reverse it.

We think the decree of July 2,1890, as between James Y. Lewis and wife and Thomas L. Broun, is erroneous.

JOHN S. SWANN’S APPEAL.

In this appeal the first question which occurs is : Has the appellant Swann any lien upon the fund coming from the sale of the Bull Creek land, or the land itself, upon his own showing ? Let us see what were the services as attorney at law on which he predicates this lien.

John Lewis died owning personal and real estate, including this Bull Creek land, having made a will giving his estate to his three sons, John W., Andrew D., and James Y. Lewis. A daughter, then Mrs. Margery Kenna, later Mrs. Margery Ashby, brought a suit to invalidate the will, or at least to obtain full participation in her. father’s estate ; and slie succeeded in obtaining a decree admitting her to participation in the personalty, but notin the land; but, as likely further litigation was threatened, a compromise between her and her brothers gave her a full share with them in the Bull Greek land. Swann claims for services in defence of this suit for the other heirs, and that his claim is a lien on the money coming from the sale of the Bull Creek land.

Another claim is this: Joab and Thomas Fowler, as children of Thomas Fowler, sued John Lewis’s heirs and administrator in 1858, claiming that their father and John Lewis were joint owners of certain lands held by LeAvis in trust for his benefit and Fowler’s benefit, and that Lewis had sold and received the proceeds of much of it, and had not accounted to Fowler for his part, and yet owned some land in which Fowler had a share ; and they sought to render Loavís’s estate accountable for moneys thus received, and to secure a share in laud yet unsold, and an attachment in the case was likely a lien on this Bull Creek land. A large sum against LeAvis’s estate was reported by a commissioner, but by compromise a decree subjecting it to the payment of seven thousand five hundred dollars was made in October, 1867. Swann claims for services in defence of this suit, and says his demand is a lien on the proceeds of said land.

. The third claim of Swann is this : Carr brought a suit against Lewis’s administrator and heirs to subject the personal and real assets of Lewis to payment of a judgment against LeAvis’s administrator in favor of Carr. This judgment was established against LeAvis’s estate, as also- some other debts. Swann claims for defending this suit, and says his claim is a lien on the proceeds of sale of the said land.

It is very well settled that an attorney has, under circumstances, a lien for his services. This lien is of two kinds: What is called the attorney’s “retaining lien” — a right to retain papers or property in his possession or moneys collected for payment of a general balance due him for services. This lien has no relation to this case, as no money was collected by Swann. It has also been held that an attorney may have a special lien upon a fund in court or in the hands of a receiver, recovered hy. him; anda court of equity, having such a fund in its possession, will protect the attorney in retaining out of it a reasonable compensation for his services. Jones, Liens, §§ 147,148; Olds v. Tucker, 35 Ohio St. 581; Spencer’s Appeal (Pa. Sup.) 9 Atl. Rep. 523; McKelvey’s Appeal, 108 Pa. St. 615.

But note that in these cases the attorney’s fee was for recovering the money constituting the fund. And note, further, that where the money is not in possession of the attorney, but in the hands of the court, his lien is not a general one for balance due for services generally, but only for services in the proceeding which produced the fund.

But there is another lien of an attorney, existing when he has neither money nor property in his hands, nor is it in the bauds of a court, and it is defined as follows in the case of Renick v. Ludington, 16 W. Va. 378: “An attorney has a lien on the judgment or decree obtained by him for his client for services and disbursements in the ease, whether the amount of his compensation is agreed upon or depends upon a quantum meruit.”

1 Jones, Liens, § 153, discussing this lien, says: “The lien of an attorney upon a judgment is properly denominated a lion in the broad sense of the term, though it rests merely on the equity of the attorney to be paid his fees and disbursements out of the judgment which he has obtained. It is not a lion that depends on possession, as liens ordinarily do, for this exists only in intendment of law. The execution on a judgment does not represent the judgment, and possession of the execution is not possession of the judgment. * * * This lien, therefore, not arising from a right on the part of the attorney to retain something in his possession, but being a right to recover for his services in obtaining judgment for his client, is called the attorney's ‘charging lien.’ It is so called because the costs and fees of the attorney are made a charge upon the judgment recovered, and this charge is enforced by the court. Some confusion has arisen in the decisions on this subject from a failure to observe the distinction between the retaining and the charging lien. The latter never extends beyond the costs and fees due the attorney in tbe suit in which the judgment is recovered; but a retaining lien extends to the general balance due the attorney from the client for professional services, and his disbursements in connection therewith. In other words, the charging lien is a special lien, and the retaining lien is a general lien.”

I see no place which the appellant’s demand can hold under these definitions. In Judge GreeN’s discussion of the nature and extent of an attorney’s lien in Renick v. Ludington, 16 W. Va. 378, he speaks of the lien as existing upon a judgment, only where it is recovered by means of the service of the attorney in favor of his client. I Have examined the elaborate discussion of the subject of attorney’s liens in that valuable work, Jones on Liens, and very many of the cases there and elsewhere cited, particularly the elaborate discussion of the subject found in Stewart v. Flowers, 44 Miss. 513 (7 Amer. Rep. 707) and In re Wilson, 12 Fed. Rep. 235; and nowhere have I found that this charging lien in favor of an attorney exists except as to moneys in the hands of a court, which his services secured, or judgments or decrees recovered by him for his client. Nowhere have I found that a claim of lien for services defensive purely has been sustained. To sustain such a lien there must be an affirmative recovery, and then the attorney is paid out of the thing recovered. It may be that services of an attorney in defence of an action against an estate are very valuable in preserving the assets of that estate, but there is no lien therefor. What the estate retains against unfounded claim against it it already had; it simply keeps it by reason of successful defence against assault; but it has recovered nothing.

Again, this claim is for defending claims against the laud, and the lien demanded is against the land or its proceeds. In fact, there is no other fund to pay it. Would it be thought that an attorney has a lien for his fee on land recovered by him for his client in ejectment or other proceeding, much less in successfully defending such a suit? Several cases have held that neither for recovering nor defending land has an attorney a lien on it.

In Lee v. Winston, 68 Ala. 402, it was held that an attorney lias no lien on bis client’s lands for services rendered in defending them against an effort to charge them with payment of a debt. After saying that an attorney has a lien ou a judgment recovered, the court said : “But the present was not a case of judgment recovered, payable in money, which, when collected, may, and ordinarily does, pass through the hands of the attorney. It arose out of a defensive proceeding, which protected Mrs. Lee’s lands against an attempt to charge them with a debt. We hold the attorney acquired no lien on the lands.”

In McCollough v. Flournoy, 69 Ala. 189, the court said: “The single question this case presents — whether a solicitor, successfully prosecuting a suit in equity to establish the title of his client to real estate, lias a lien on the estate for his fees — was decided in Hinson v. Gamble, 65 Ala. 605.” The existence of such lien is recognized in Tennessee, but is repudiated in other states. Hunt v. McClanahan, 1 Heisk. 503; Brown v. Bigley, 3 Tenn. Ch’y 618; Humphrey v. Browning, 46 Ill. 476; Smalley v. Clark, 22 Vt. 598; Cozzens v. Whitney, 3 R. I. 79; Hanger v. Fowler, 20 Ark. 667.

It seems to us unwarranted by principle to extend the lien to lands which have been the subject of suit. There would be much difficulty and confusion resulting from it, embarrassing alienation it is the policy of the law to unfetter. See Humphrey v. Browning, 95 Am. Dec. 446, holding that the attorney has no lien for recovering land in ejectment or other action. Likewise Martin v. Harrington, 57 Miss. 208; Hanger v. Fowler, 20 Ark. 667; Smalley v. Clark, 22 Vt. 598.

Thei’e is another obstacle to the appellant’s demand. “An attorney’s lien upon an uncollected judgment is confined to the judgment in the very action in which the services were rendered. The theory upon which the lien is founded is that the attorney, by his skill and labor, obtained the judgment, and hence should have a lien upon it for his compensation, in analogy to the lien which a mechanic has upon an article which he manufactures.” 1 Jones, Liens, § 166 ; Adams v. Fox, 40 Barb. 448; In re Wilson, 12 Fed. Rep. 235. He can not charge on one judgment fees in several cases.

In this case the fund which the attorney seeks to make liable comes from sale in the case formerly under the title of Carr v. Administrator and Heirs of John Lewis, later under the title of E. M. Fowler v. Administrator and Heirs of John Lewis, from a sale of the Bull Creek land, to pay debts of John Lewis, and by the reference to pay debts of heirs and at suit of Sperry, guardian of Andrew D. Lewis’s children, Sow, what claim can Swann have on the land or its proceeds for services in an entirely different suit brought by Mrs. Kenna to overthrow her father’s will and come in for a full share of her father’s estate? What claim can lie have for service in defence of the suit long ago dismissed, wholly different from the suit now entitled E. M. Fowler v. Administrator and Heirs of John Lewis, brought to set up Fowler’s demand against Lewis’s estate ? What claim can he have for defence by answer for heirs of John Lewis of Carr’s suit to subject John Lewis’s land to pay a debt of Carr’s which was established and paid long ago during the pendency of the suit from personal assets?

Without passing on the question of the authority of the person employing Swann, or what sorviees he rendered, or the value of his services, or for whom the services were rendered, or on the question of limitation, we are' compelled to decide that he has no lien for his fees, and we think the commissioner and Circuit Court decided correctly as to this matter, and we affirm the decree in this respect, without prejudice to any personal action.

Since this opinion was handed down and pending the rehearing of this case Lewis v. Brown, has been decided and is reported supra, p. 1. (14 S. E. Rep. 444.). — (Reporter.)