This is an appeal from an order overruling a motion to dismiss a bill of complaint by which an attorney at law sought to establish an equitable lien upon lands which he had procured to be set off to his client, a widow, as a child's part in the estate of her deceased husband, under an agreement with the widow that the complainant "would of necessity have to be paid * * * out of, and from any and all property obtained by defendant (the widow) from the services of the plaintiff in securing said child's part." *Page 645
There was no agreement between the parties as to the amount which the widow should pay to the attorney for procuring an order from the appropriate court setting aside and confirming to the widow such portion of the lands of her deceased husband as might be deemed to be a child's part, nor any agreement that the attorney should have a lien upon any lands or other fund that might be set apart for her. There was a mere understanding that the solicitor's "fees * * * for services to be rendered by said plaintiff to defendant would of necessity have to be paid * * * from * * * property obtained by defendant from the services of the plaintiff * * * in securing said child's part."
There is much in the bill about the volume of the work done and the nature of the services, which can have no special bearing upon the relief sought, because if an equitable lien upon the property recovered exists in favor of the plaintiff it does not depend upon the volume of services rendered nor the difficulties and inconveniences to which the plaintiff has been subjected. That he was employed by the defendant, rendered the services and recovered the property and the mere understanding that his fees were to be paid from the property recovered constitute the conditions on which the claim is predicated.
It is inaccurate to say that no lien existed at common law in favor of an attorney for his fees upon property of his client which comes into the attorney's possession by reason of his services. While the term "lien" has been questioned as an appropriate one, the right to "defalcate" being the more accurate expression, the custom has existed from very early times. It is analogous to the "retaining lien" of the artisan or laborer. That form of "lien" is the right of the attorney to retain possession of documents, money or other property of his client, coming into his hands *Page 646 professionally until a general balance due him for professional services is paid. See Sweeley v. Sieman, 123 Iowa 183, 98 N.W. Rep. 571; First State Bank of Le Sueur v. Sibley County Bank,96 Minn. 456, 105 N.W. Rep. 485; Cones v. Brooks, 60 Neb. 698, 84 N.W. Rep. 85; Heywood v. Maynard, 103 N.Y. Supp. 1028; Leask v. Hoagland, 118 N.Y. Supp. 1035; Weed Sewing Machine Co. v. Boutelle, 56 Vt. 570, 48 Am. Rep. 821; Northrup v. Hayward,102 Minn. 307, 113 N.W. Rep. 701; Rooney v. Second Avenue Railroad Company, 18 N.Y. 368; Dennett v. Cutts, 11 N.H. 163; Ward v. Craig, 87 N.Y. 550; Sanders v. Seelye, 128 Ill. 631, 21 N.E. Rep. 601.
Our statutes do not change the common law in that regard, nor is there anything in our statutes which changes the common law relations between attorneys and their clients in such a manner as to affect the right, nor is there any reason for saying that the common law in this regard is inapplicable to the " 'habits and conditions of our society, or contrary to the genius, spirit and objects of our institutions.' " See Sanders v. Seelye, supra.
Now there is a difference between the retaining lien, or right to defalcate, and the charging lien, which is an equitable right to have the fees and costs due to an attorney for services in a suit secured to him out of the judgment or recovery in the particular suit, the attorney being regarded as an equitable assignee of the judgment. It is based on the equity that the plaintiff should not be permitted to appropriate the whole of a judgment in his favor without paying thereout for the services of his attorney in obtaining the judgment. It is an exception to the general rule in that it lacks the element of possession which is essential to ordinary liens and for this reason such a lien did not exist at common law. The existence of the lien was recognized *Page 647 in several early English cases and it exists in most jurisdictions in this country ether by statute or by virtue of judicial decisions. See Carter v. Davis, 8 Fla. 183; 6 C. J. 767.
Both the retaining and charging liens are claim to the equitable interference of the court to have the judgment held as a security for the debt. The remarks of Baron Parke and Baron Martin in the case of Hough v. Edwards, 1 H. N. 171, 37 Eng. L. Eq. 470, are said to exactly define the attorney's lien:
"Primarily, without doubt, the lien originates in the control which the attorney has by his retainer over the judgment, and the processes for its enforcement. This enables him to collect the judgment and reimburse himself out of the proceeds. It gives him no right, however, to exceed the authority conferred by his retainer. But inasmuch as the attorney has the right, or at least is induced, to rely on his retainer to secure him in this way for his fees and disbursements, he thereby acquires a sort of equity, to the extent of his fees and disbursements, to control the judgment and its incidental processes, against his client and the adverse party colluding with his client, which the court will, in the exercise of a reasonable discretion, protect and enforce. And on the same ground, the court will, when it can, protect the attorney in matters of equitable setoff. We think this is the full scope of the lien, if lien it can be called. It does not authorize the attorney to sue the judgment, without the consent or direction of the client." 6 C. J., supra.
See Horton v. Champlin, 12 R.I. 550, 34 Am. Rep. 722.
In this case, however, there is sought to be imposed upon the property recovered and in the hands of the client a lien enforceable in equity; the claim resting upon an agreement *Page 648 that the fee for services shall constitute a lien upon the property recovered. In some jurisdictions a contract between an attorney and a client for the payment of the attorney out of the judgment recovered operates as an equitable assignment of the fund pro tanto and creates a lien on the specific fund, provided it was the intention of the parties that the fund itself is to be looked to for security, but that doctrine has never been engrafted upon the jurisprudence of this State, and the Supreme Court of the United States in Burke v. Child, 21 Wall. 441, 22 L.Ed. 623, said:
"But a mere agreement to pay out of such funds is not sufficient. Something more is necessary. There must be an appropriation of the fund pro tanto, either by giving an order or by transferring it otherwise in such a manner that the holder is authorized to pay the amount directly to the creditor without the further intervention of the debtor."
And in 6 C. J. 769 it is stated:
"On the other hand a mere naked promise to pay an existing debt out of a particular fund, unaccompanied by any words of transfer or the giving of any power or authority over the fund, does not operate to create a lien thereon." See also Porter v. White, 127 U.S. 235, 8 Sup. Ct. Rep. 1217, 32 L.Ed. 112.
Whether the particular agreement constitutes a lien is a matter of construction. In view of the very close and confidential relation which exists between attorney and client, such agreements should be most carefully scrutinized and construed most strongly against the attorney.
I think the order should be reversed and the bill should be dismissed. *Page 649