OPINION.
Eakin, J.
This case presents these questions :
1. - Do the motion and accompanying answer and bill of appellants show in them any such rights as would entitle them to move the court to set aside the decree rendered on constructive service, and admit them to '
2. What are the. priorities as between them and the appellees claiming an attorney’s lien?
•3. If they have no priority, do they show any right to contest the amount of the lien?
Upon the first point, the case is prima facie in their favor. They were made defendants, which indicates the opinion of appellees (complainants below), that they had some such claim as should entitle them to a hearing, and which required to be adjudicated. Besides, the statute is imperative and unconditional, as to all defendants constructively summoned, who did not appear. (Gantt’s Digest, sec. 4732). All or any of them may, within five years, appear in court and move for a new trial, and are entitled, as a matter of right, upon giving security for costs, to be admitted to make defense. They need not show merits as a condition J precedent. They risk the costs, and are entitled to have the matter of merits determined on demurrer, or.evidence after the doors are opened. They have no right, however, to have the former judgment, meanwhile, vacated on motion. ' It remains until the case is re-tried, to be then confirmed, modified or set aside.
They need not first its01T mer" 2 Assignment: Ofréüeinp-“ of land bqught.untíón ex6fu) -■ ■ Nevertheless, if the court should refuse to admit a defendant to make defense, and the answer which he proposes to file should not disclose any substantial right, the error would not be so prejudicial to him as to require correction. If the defense is incorporated with the motion, it may be considered to include all the defendant means to stand upon.
The rights disclosed, rest upon the instrument called an ° assignment,” or “power of attorney, for the terms of which, reference is made to the reporter’s statement. It , . 7 was executed before the final confirmation of the sale in the original mortgage suit, but after the sale had been made and approved by the court. By order of the court, the title still remained in the original defendant.
' It will be observed that Barrow did not assign the decree itself, or his interests under it. He attempted only to assign the specific sum. which Parham, defendant in the original suit, might pay for redemption. He was under no obligation to pay anything, nor to redeem at all. This was a future contingent interest in a fund, which never came into existence, inasmuch as Parham never redeemed. As an assignment, the instrument had, at law, no original validity, and although good in equity if anything had. come into existence afterwards upon which it could attach, yet it fails there also for want of the specific .fund. As a power of attorney, it fails also at law, because, after Farrow’s death, it could not be executed for want of any legal or equitable title, in the attorney, which he could convey on sale. It only remains, then, to examine whether, by its provisions, any trust attached, in favor of appellants, upon the contingent equitable title then held by Farrow, and which, descending to his heirs, became perfected in them as a legal title, after the time allowed for redemption had expired.
The only express trust created by the instrument was in Cummins, the attorney, and he was made trustee, not of any estate or title, but simply of a power, which it became impossible • for him to execute after Farrow’s death, without the aid of a court of chancery. It created nevertheless in favor of appellants, an executed trust of the power, in the sense of fully.defining the interest of appellants in the subject-matter. It was none the less an executed trust, because the subject-matter was contingent; and being such, the trust would be supported by the pre-existing debt. It is clear, enough that Farrow had the right to give such a power for the purposes indicated, and that, but for his death, it would have been the duty of the attorney in fact, accepting the trust, to have proceeded to sell for the benefit of appellants, and that upon such sale, Farrow would have been compelled, in equity, to execute deeds to carry.out the powers be had thus conferred. It is clear enough if we consider Farrow as still alive. What equity is there in holding that the accident of his death should divest appellants of equities conferred upon them by Farrow, and which he desired them to retain ? Death does not operate by way of revocation of vested rights, although it severs the connection between principal and agent or attorney, as to future action.
Courts of chancery will not allow rights to be lost by accident unaccompanied with laches. Relief against' accidents is a common ground for their interposition. They will supply a trustee in case of the death or refusal to aot, of the one appointed. Here the trustee is not dead, but can not act, because the grantor of the power being dead, and title not being in the attorney, he can not sell and make title without the aid of a court. That this is a power in trust, as distinct from a mere authority to sell, as agenf, is. evident upon the face of the instrument. The appellants are the intended beneficiaries, and the expressed design is to secure their debt. The maker evidently meant that they should rest upon the instrument as a security for payment; and not simply to express just and.honest purposes of his own. It would not have been possible for him to use language more clearly expressive of this intention. All imperative powers are trusts. Perry on Trusts, secs. 248, 478.
Further, this trust not only bound the conscience of the trustee of the power, but attached to the estate, and followed it into the hands of the heirs, who obtain title through the donor. Mr. Sugden, in his work on Powers, vol. 2, p. 158, says: “But sometimes trusts and powers are blended; a man may be invested with a trust to be effected by the execution of a power given to him, which is in that case imperative, and if he refuse to execute it, or die without having executed it, equity, on the general rule that the trust is the land, will carry the trusts into execution at the expense of the remainderman, and without any regard to the person in whose favor it is to be executed, being a mere volunteer, and not a purchaser, creditor, wife or child.”
. Cases where powers are not trusts arise where they remain in the option of the donee to exercise for the benefit of others at his discretion. They are all trusts where other parties have the right to demand of them their execution.
Almost all the cases bearing upon the question now before us, have arisen under wills and testaments; but there is no principle to distinguish them from cases under deeds inter vivos, save that the latter, if of an executory character, require a consideration, whilst bequests and devises may rest solely on the bounty of the testator.
The conclusion of the court is, that it was meant by this instrument to give to appellants a security upon the lands in question, by the execution of a power to sell them for the purpose; that this power was imperative upon the donee, to be exercised upon the demand of the.
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OPINION.
Eakin, J.
This case presents these questions :
1. - Do the motion and accompanying answer and bill of appellants show in them any such rights as would entitle them to move the court to set aside the decree rendered on constructive service, and admit them to '
2. What are the. priorities as between them and the appellees claiming an attorney’s lien?
•3. If they have no priority, do they show any right to contest the amount of the lien?
Upon the first point, the case is prima facie in their favor. They were made defendants, which indicates the opinion of appellees (complainants below), that they had some such claim as should entitle them to a hearing, and which required to be adjudicated. Besides, the statute is imperative and unconditional, as to all defendants constructively summoned, who did not appear. (Gantt’s Digest, sec. 4732). All or any of them may, within five years, appear in court and move for a new trial, and are entitled, as a matter of right, upon giving security for costs, to be admitted to make defense. They need not show merits as a condition J precedent. They risk the costs, and are entitled to have the matter of merits determined on demurrer, or.evidence after the doors are opened. They have no right, however, to have the former judgment, meanwhile, vacated on motion. ' It remains until the case is re-tried, to be then confirmed, modified or set aside.
They need not first its01T mer" 2 Assignment: Ofréüeinp-“ of land bqught.untíón ex6fu) -■ ■ Nevertheless, if the court should refuse to admit a defendant to make defense, and the answer which he proposes to file should not disclose any substantial right, the error would not be so prejudicial to him as to require correction. If the defense is incorporated with the motion, it may be considered to include all the defendant means to stand upon.
The rights disclosed, rest upon the instrument called an ° assignment,” or “power of attorney, for the terms of which, reference is made to the reporter’s statement. It , . 7 was executed before the final confirmation of the sale in the original mortgage suit, but after the sale had been made and approved by the court. By order of the court, the title still remained in the original defendant.
' It will be observed that Barrow did not assign the decree itself, or his interests under it. He attempted only to assign the specific sum. which Parham, defendant in the original suit, might pay for redemption. He was under no obligation to pay anything, nor to redeem at all. This was a future contingent interest in a fund, which never came into existence, inasmuch as Parham never redeemed. As an assignment, the instrument had, at law, no original validity, and although good in equity if anything had. come into existence afterwards upon which it could attach, yet it fails there also for want of the specific .fund. As a power of attorney, it fails also at law, because, after Farrow’s death, it could not be executed for want of any legal or equitable title, in the attorney, which he could convey on sale. It only remains, then, to examine whether, by its provisions, any trust attached, in favor of appellants, upon the contingent equitable title then held by Farrow, and which, descending to his heirs, became perfected in them as a legal title, after the time allowed for redemption had expired.
The only express trust created by the instrument was in Cummins, the attorney, and he was made trustee, not of any estate or title, but simply of a power, which it became impossible • for him to execute after Farrow’s death, without the aid of a court of chancery. It created nevertheless in favor of appellants, an executed trust of the power, in the sense of fully.defining the interest of appellants in the subject-matter. It was none the less an executed trust, because the subject-matter was contingent; and being such, the trust would be supported by the pre-existing debt. It is clear, enough that Farrow had the right to give such a power for the purposes indicated, and that, but for his death, it would have been the duty of the attorney in fact, accepting the trust, to have proceeded to sell for the benefit of appellants, and that upon such sale, Farrow would have been compelled, in equity, to execute deeds to carry.out the powers be had thus conferred. It is clear enough if we consider Farrow as still alive. What equity is there in holding that the accident of his death should divest appellants of equities conferred upon them by Farrow, and which he desired them to retain ? Death does not operate by way of revocation of vested rights, although it severs the connection between principal and agent or attorney, as to future action.
Courts of chancery will not allow rights to be lost by accident unaccompanied with laches. Relief against' accidents is a common ground for their interposition. They will supply a trustee in case of the death or refusal to aot, of the one appointed. Here the trustee is not dead, but can not act, because the grantor of the power being dead, and title not being in the attorney, he can not sell and make title without the aid of a court. That this is a power in trust, as distinct from a mere authority to sell, as agenf, is. evident upon the face of the instrument. The appellants are the intended beneficiaries, and the expressed design is to secure their debt. The maker evidently meant that they should rest upon the instrument as a security for payment; and not simply to express just and.honest purposes of his own. It would not have been possible for him to use language more clearly expressive of this intention. All imperative powers are trusts. Perry on Trusts, secs. 248, 478.
Further, this trust not only bound the conscience of the trustee of the power, but attached to the estate, and followed it into the hands of the heirs, who obtain title through the donor. Mr. Sugden, in his work on Powers, vol. 2, p. 158, says: “But sometimes trusts and powers are blended; a man may be invested with a trust to be effected by the execution of a power given to him, which is in that case imperative, and if he refuse to execute it, or die without having executed it, equity, on the general rule that the trust is the land, will carry the trusts into execution at the expense of the remainderman, and without any regard to the person in whose favor it is to be executed, being a mere volunteer, and not a purchaser, creditor, wife or child.”
. Cases where powers are not trusts arise where they remain in the option of the donee to exercise for the benefit of others at his discretion. They are all trusts where other parties have the right to demand of them their execution.
Almost all the cases bearing upon the question now before us, have arisen under wills and testaments; but there is no principle to distinguish them from cases under deeds inter vivos, save that the latter, if of an executory character, require a consideration, whilst bequests and devises may rest solely on the bounty of the testator.
The conclusion of the court is, that it was meant by this instrument to give to appellants a security upon the lands in question, by the execution of a power to sell them for the purpose; that this power was imperative upon the donee, to be exercised upon the demand of the. appellants, and that for the purposes of the power there was an implied trust in Earrow to hold any legal or equitable interest in the land, which he might obtain, to be conveyed by him to the vendee. Further, that in case of a sale, a court of chancery would have compelled such conveyance, and that no sale having yet been made, it will follow the lands into the hands of the heirs, and com'pel the execution of the trust by them, by divesting their title, in favor of any purchaser at a sale made under order of court.
It follows, therefore, that the appellants being entitled, to the extent of their debts, to the proceeds of the land, have such an interest, if their answer and cross-bill be sustained, as made them proper parties to the suit, and entitles them now to contest the priority of complainant’s lien, or its amount if superior to their own. The circuit court erred in refusing to allow them a re-trial.
3. Attorney's Lien: Follows the iund recovered. Filing with clerk. Next,'as to priority. Both by statute and upon general principles of equity practice, the attorneys of Farrow in the foreclosure suit, might assert a lien upon the fund thereby recovered for services therein rendered. The object of the suit had not been to recover land, or establish title, but to recover money by foreclosure, and as the complainant had taken land by foreclosure in place of money, it would have been just and entirely in accordance with Hanger and Wife v. Fowler, 20 Ark., 667, to have transferred the lien to the land. It is useless, however, at this day, to discuss the extent of an attorney’s lien, as the whole, matter has been settled by the Code of Civil Practice since Hanger’s case, and no language could be plainer than that of the Code, to give the-lien here claimed. See Gantt's Digest, secs. 3622, 3626. The necessity of filing with the clerk a statement of the lién in writing, as prescribed by the last two' sections above quoted, and having the same'noted in thé'margin of the record book near the-judgment, extends only to protect'those -who in good faith and without’notice,'make payment on the judgment, and have no bearing-on this case. The assignment and-power of"attorney was executed by Farrow before the fund was realized under the order of thé court, and being prospective in its operation could only attach'upon 'such- net'ultimate points of the litigation as would inure' to Farrow ;■ which would be the money or land, subject to the lien of the attorneys through' whose efforts it was obtained. This lien was allowed by general law, and' appellants might well ■have anticipated that it would be declared by the court upon the fund when it came in, in whatever shape it might then be. They stand upon their assignment,.if it conveyed anything, in the attitude and subject to the' equities of purchasers pendente lite. They had no right to vacate the decree then, upon the ground of priority, but do have the right to contest its amount, for the protection of such residuary interest as they may be able, .upon a trial, to establish against the heirs of Farrow. We are not now .determining the matter ultimately, as between appellants and the heirs, but only the action of the court in refusing to let in the appellants to answer and file their cross-bill against the proper parties, that all rights may be adjusted. We •decide asdo the lien of appellees for fees, that it is .superior to the rights of either appellants, or the heirs, in the property, but that it extends only to compensation rendered in and concerning the prosecution of the special suit, in which it was declared. It will not include all of the services mentioned in their complaint. For instance, the prosecution of the suit in Tennessee, upon another note, or the investigation of securities given' to secure another debt, although all the debts were created at once by Parham on the original purchase.
5. cbancecommi'sport6}iHma purchasers tooompiete fclisir purchases, We find no error in the refusal of the motion to set aside the sale made by the commissioner. By his report the appellants were the purchasers. This was prima facie a sufficient showing that they had thereby become parties to the proceedings and subject to the orders of the court, True, they might have shown that they had not in fact bid, either by themselves or authorized agents, and attempted to do so. The Chancellor was not satisfied with the proof, and viewing it in connection with their letters, in which they would naturally have repudiated the authority of the agent, but failed to do so, we can not say the Chancellor was mistaken. The decree of the court ordering them to pay the money into the hands of the commissioner, or that execution should issue, was entirely within the power the court, after they had actually come in and become parties by their motion and contested their liability on the purchase. It will yet remain within the discretion of the court as equity may require, on a re-trial, to set aside the former sale and direct another, or allow that already made to stand and deal with the proceeds, compelling obedience to its orders for their payment into court.
All the English and American authorities concur in supporting the power of a court of chancery, by summary orders and proceedings, to compel bidders at sales to act in pursuance of the decrees and orders under which the sales were made. Otherwise strangers, acting secretly in the interests of a defeated party, might' obstruct the proceedings of the court and bring it into contempt. Any tribunal which can be trifled with, will be. See ample authorities collected by Mr. Rover, in his work on Judicial Sales, sec. 152, et seq.
The cause being opened for a defense, it will be in the power of the court to entertain the cross-bill also. Indeed, the purposes of justice manifestly • require it. There need be no further delay in affording relief to the appellees on their attorney’s lien, than may be necessary to ascertain its amount. That being paid out of the proceeds of the sale, or advanced by appellants, the cause might still be retained for a final adjudication of all rights between appellants and the heirs and personal representatives of Farrow. They must be brought in by new service, however, for all matters connected with the cross-bill, and have day in court. All merits as between them and appellants are reserved in this opinion. The whole force of it is to declare the lien of the appellees for fees to be superior to both sets of claimants of the land, and that appellants should be let in, on the showing made by their answer, cross-bill and motion, to defend as to its amount, and prosecute their cross-bill for title, or the residue of the fund, against the heirs and representatives of Farrow.
For error in refusing to allow appellants to file their answer and cross-bill, reverse the decree as to that, and remand the cause for further proceedings consistent with equity practice and this opinion.