ON REHEARING.
Brannon, J:Since the foregoing opinion was delivered in the Appeal of John S. Swann, a rehearing was granted him, and upon the decision after such rehearing I add the following to the above opinion :
As to the position taken in the foregoing opinion that an attorney’s lien does not extend to land: A statute of Louisiana gave attorneys a lien for fees “on all judgments obtained by them,” and it was held in Luneau v. Edwards, 39 La. Ann. 876 (6 South. Rep. 24) that it did not create a lien on land recovered, and in Weil v. Levi, 40 La. Ann. 135 (3 South. Rep. 559) that it did not create a lien on land *145successfully defended. In Fillmore v. Wells, 10 Col. 231 (15 Pac. Rep. 343) the lien was declared to extend to realty recovered, but the decision was based expressly on a statute: and the opinion in the ease admits that it could not he sustained by the common-law, saying: “There are few decisions which seem to sustain the attorney’s right to look, through his lien, to the land for his taxable fees; but the weight of authority undoubtedly sanctions the proposition that no such privilege is awarded by the common-law.”
After the decision in Arkansas in Hanger v. Fowler, cited in the above opinion, holding that an attorney had no lieu on land recovered, the legislature of Arkansas enacted that attorneys should have a lien upon and an interest in “any judgment recovered by or in favor of a party” for their fees, and that, where the judgment was for real or personal property, “the lien should amount to an interest in such property;” and it was held in the late case of Hershy v. Da Val, 47 Ark. 86 (14 S. W. Rep. 469) that “a solicitor has no lien upon his client’s land for his fee for services rendered in removing a cloud from his title to it;” that the lieu provided by said act “is limited to cases where there has been an actual recovery, and can not be extended to services which merely protect an existing title or right of property.” The court declared that, without a statute to authorize it, attorneys can not sustain a claim against real estate for services in either prosecuting or defending a suit involving it. The House of Lords in 1858 held that an attorney has no-lien upon an estate recovered for a client, but only on papers in his hands, and overruled the case of Barnesley v. Powell, Amb. 102, holding that a solicitor prosecuting a chancery suit has a lien on the estate in the hands of the party recovering. Lord Wensleydalh (Baron PaRKe) said, “I never heard such a proposition at law.” “Hor I in equity,” said Lord St. LEONARDS (formerly Sug-den, the author of Sngden on Vendors.) The decision of the House of Lords gave rise to the English act (23 & 24 Viet.) providing that the court may declare a lien on property recovered or preserved in the suit for the services of the attorney. Why this statute, if, as claimed here, there was a lien without it?
*146Kentucky has a statute providing that an attorney prosecuting to recovery an action for property real or personal shall have a lien on it for his fee, and the Court of Appeals of that State held that, “where nothing is recovered for his client, there is nothing to which an attorney’s lien can attach.” Wilson v. House, 10 Bush, 406
The appellant’s claim is for services only defensive of the land against a debt claim, and it seems to me .that the cases above cited repel such claim. It is further strongly repelled as a claim for services in defence of a debt sought to be asserted against it by the case in Tennessee, of Garner v. Garner, 1 Lea 29, wherein the syllabus reads: “The solicitor of the defendants, in a suit to establish a resulting trust in the client’s land, is not entitled to a lien on the land for compensation due him for professional services, although the suit be successfully defended.” Also by the case of Hinson v. Gamble, 65 Ala. 605, holding that “an attorney has no lien on lands for professional services rendered for the owner in a suit which sought to subject them to an unfounded claim or liability.”
I shall now refer to some of the eases cited by appellant on his application for rehearing. Great stress is laid upon the Tennessee case of Hunt v. McClanahan, 1 Heisk. 503, holding that attorneys have a lien upon property recovered or preserved, which maybe declared by order in the cause in which the services were rendered. That was a suit bi’Ought to enjoin the sale of land under a judgment, and on petition tiled in the same case at the same term at which the decree exonerating the land from the judgment was rendered, asking compensation to the attorneys of complainants for the services, a lien was declared against the laud. That lien was declared on petition in the same case, and the court regarded it as a pecuniary fund in the hands of the court, as the opinion states. The syllabus, it is noted, announces that the attorney has a lien which may be declared by an order in the cause in which the services are rendered. But that case was decided in 1870 ; and in the case of Garner v. Garner, above cited, decided in 1878, the same court held that the defendant’s solicitor has no lien for service in successful defence of a suit to establish a re-*147suiting trust upon laud; tlie court saying in the o¡anion that the court hacl recently considered the question in several unreported cases, and reached the conclusion “that the lien only exists in the case of the actual recovery of land by a suit instituted for the purpose, just as at common-law the lien was on the money-judgment recoveredand added that the “safer rule would he to hold that the lien can not be extended to services which merely protect an existing title or right to property.” The court said that the “language used in some of the cases would seem to justify such extension of the rule,” but added that the court had recently considered the question, and reached the conclusion above stated.
Perhaps the former case of Hunt v. McClanahan, 1 Heisk. 503, was referred to as using language to justify such an extension of the rule, and that, weighed in the balance, it had been found wanting. It would seem so. It is not followed in the later case, but impliedly overruled ; and that case was based on Barnesley v. Powell, Amb. 102, but, as stated above, the last-named case was overruled in the House of Lords.
Great stress is also laid on the Georgia case of Strohecker v. Irvine, 70 Ga. 639, holding that “the lien of an attorney for services in successfully resisting a levy on a homestead and obtaining it to be set apart as an exemption is in the nature of labor done on the homestead aud of purchase money thereof, and the homestead is subject thereto.” This case is not an exposition of common-law doctrine, for section 1989 of the Georgia Godo, expressly provides that attorneys’ services shall be a lien on laud. Nothing more need be said of that case.
The case of Cowdrey v. Railroad Co., 93 U. S. 352, was a a claim for attorney’s fees upon money arising from amort-gage which he had been employed to enforce ; an ordinary case of attorney’s lien as to a debt he recovers.
Winchester v. Heiskell, 119 U. S. 450 (7 Sup. Ct. Rep. 281) is clearly not applicable. An attorney was employed to defend in a state court a suit to set aside a deed of land. Pending the suit, the party retaining him conveyed the land in trust to secure debts, and became a bankrupt. The attor*148ney succeeded in defending the land, and in the suit sustaining his client’s right the assignee became a party, and a lien was declared in favor of the attorney, and the land sold for it. Then the parties claiming under the trust-deed sued to enforce their lien, claiming their right to be superior to that of the purchaser under the decree made for the attorney’s lien, and claiming that they were not bound by said decree, as they nor their interest in the land had been before the court in the former suit; and this suit was dismissed, the state court holding the decree in the first suit binding. There the court pointedly said that while, under earlier decisions (Hunt v. McClanahan) a lien could have been sustained for defending a suit to recover land, yet, under later decisions (Garner v. Garner, 1 Lea 29) no such lien could be sustained. 16 Lea 556.
The case went to the.United States Supreme Court. The sole questions were, not whether the court in the first suit had properly decided that the attorney had alien, but,first, whether there was federal jurisdiction to enable the Supreme Court to render any decision ; and, if so, whether the state court had jurisdiction to render a decree allowing the lien, or was without jurisdiction, because the matter touched the estate of a bankrupt, of which the federal tribunals had jurisdiction. The Supreme Court only held (1) that the state court had jurisdiction to bind those who were parties and those whom they represented ; (2) that, the as-signee having appeared and litigated the matter, he and those he represented were bound by the decree. The Chief Justice said that immunity from the decree was claimed because the bankrupt act made the jurisdiction of the United States courts exclusive in such cases, and said: “We thus have jurisdiction, but, as the decision of the state court upon this question was clearly right,” no further argument was desired; that is, the decision of the state court that the state court had jurisdiction in the suit in which the decree allowing the lien had been given was right. The merits of that decision were not at all considered; simply that the state court had jurisdiction to issue the decree, and that it was conclusive.
The case of Trustees v. Greenough, 105 U. S. 527, has no *149application, for it involved no question of attorney’s lien, but simply belcl that, where one bondholder, suing for himself and others, had by suit obtained a decree selling land conveyed to trustees to secure the bonds, he should be reimbursed costs paid by him, some of them being fees paid by him to attorneys in litigation to save the property from waste. lie was reimbursed costs, as if a trustee. The court said so, and that a trust-estate must bear the expenses of its administration.
The case of Railroad Co. v. Pettus, 113 U. S. 116 (5 Sup. Ct. Rep. 387) is simply the assertion of a claim by attorneys prosecuting suit to collect a debt by foreclosing a mortgage, and is nothing more than the application of the common doctrine that an attorney has a lien on the judgment or decree obtained, as explicitly stated in the opinion, page 127. McKelveys Appeal, 108 Pa. St. 615, is simply an allowance to an attorney recovering a fund.
blow, as to English cases. They do not bind us as authority. The case of Irving v. Viana, 2 You. & J. 70, is the nearest approach to oppositeness of those cited. It as-sei’ts that “a solicitor lias-a lien on a fund in court produced by his exertions,” which seems somewhat obiter, for the application for payment was denied. It is otherwise unsatisfactory. One judge says the solicitor, could have no lien except on costs in equity payable to his clients, that is, recovered by him. Eo one would deny his right, on common principles, to alien on a judgment for money recovered by him for costs. The other judge says that he concurred with his associate, and announced that, where a solicitor had gained a benefit for his client, he should not be deprived of a lien on a fund produced by his exertions. Did that relate only to a j udgment for costs recovered ? The chief baron limited it to that.
Haymes v. Cooper, 33 Beav. 431, was a ease of specific performance; anda decree was made for the purchaser, who paid the purchase-money into court. A contest arose between defendant’s attorney claiming a lien and an as-signee of the money. The court held that the lien of a solicitor for his costs on a fund recovered by his exertions can not be affected by an assignment. It is sufficient to *150say that here was money in court belonging to defendant, as a fruit of the suit; and the statute cited by the court provided that, in every case where an attorney should be employed to either “prosecute or defend any suit,” he should have a lien on the property recovered or preserved by it. We have no statute giving a defendant’s attorney a lien, as in England.
In the case of Jones v. Frost, L. R. 7 Ch’y App. 773, a solicitor brought suit to annul' a deed for land as a cloud over title, and succeeded, and was held entitled to have an order in the case charging the land for his fee. The heading of the case cites the English statute just mentioned. That was the justification for the allowance. To establish such a lien on real estate would be fraught with grave danger to creditors and purchasers. It is a secret lien. Ho law requires it to be recorded. Courts did not favor the old secret vendor’s equitable lieu, because of its danger to purchasers and creditors. If this lien is established, how could a man credit on the faith of a tract of land which had been involved in litigation ? How long does the lien last? What is its amount? Just what it may be proven to be. How could a seller or purchaser or creditor learn its amount until actual adjudication ?
Another view has just occurred to me, on which I have not had the benefit of argument by counsel. It is clear that the claim of appellant is uot a lien on land, as an attorney’s compensation can not be a lien on land. This position has been yielded in oral argument on the rehearing. How, when Lewis died, the land passed to his devisees and was land in their hands, and the surplus proceeds of sale after payment of debts remained land. It so strikes my mind, and the authorities sustain this view. The sale was not a conversion from land to money.
Mr. Pomeroy (3 Eq. Jur. § 1167) speaking of conversion by paramount authority, compulsory sales of lauds under statute, and orders of court, says: “The question presents itself: Is the property, although defacto converted, to'bo treated to any extent as not converted?” and refers us to his note.for the answer; and there we find it laid down thus : “Sale of land by order of court. Where land is *151thus sold, and there is any surplus of money after satisfying the purpose for which the sale was made, such surplus is always regarded and treated as real estate. Cook v. Dealey, 22 Beav. 196; Jenny v. Preston, 33 Sim. 356.” He states in his text that, “where land is sold by order of court for any purpose, it is a fixed principle, upon which the court always proceeds, that the character of the property should be changed only so far as may he necessary to accomplish the particular purpose.” See 1 Lomax, Ex’rs, 222, 223.
On the death of a mortgagor the equity of redemption goes to his heirs, and the surplus of a sale under decree against the heirs to foreclose goes to them. Shaw v. Hoadley, 8 Blackf. 165; Dunning v. Bank, 61 N. Y. 497; per Chancellor Kent in Moses v. Murgatroyd, 1 Johns. Ch’y 130; 2 Jones, Mortg. § 1913; Chaffee v. Franklin, 11 R. I. 578; March v. Berrier, 6 Ired. Eq. 524. Where a debtor gives a deed of trust to secure debts, and there is sale after his death, the surplus goes to his heir. 1 Lomax, Ex’rs, 225. Surplus proceeds of sale of land of decedent by order of court, to pay debts, remain realty. 2 Story, Eq. Jur. (13th Ed.) § 1214 elaborate discussion of cases; Oberly v. Lerch, 18 N. J. Eq. 346; Pence v. Pence, 11 Ohio St. 290. As the decedent left it, so it remains.
So I regard the surplus after paying debts as still land,, as regards this claim, and that the attorney’s claim for service before a sale is not a lien. When the service was rendered the land had not been sold. If it could not be a lieu when the service "was rendered, how could it become a lien afterwards ?
What was the service of appellant ? In 1859, in the suit of Joab and Thomas Fowler, as children of Thomas Fowler, against Lewis’s Estate the appellant filed a demurrer, which was overruled, and in 1860 he filed answers for two of the Lewis heirs. That suit ended in a decree for seven thousand five hundred dollars against Lewis’s estate. It never went further ; and about the same time he filed exceptions to the commissioner’s report in that case. In 1859 and 1860, in the suit of Margery Kenna against her brothers to overthrow the will of her father'he defended for two of the brothers. This suit was compromised in 1866. In 1881 *152the creditor’s suit of Carr v. Lewis’s Estate, which, when Carr’s debt was paid, was ordered to proceed in name of E. M. Fowler as plaintiff, and in which the land was sold, he defended nothing for the estate; but in 1885 he defended John W. Lewis and Andrew D. Lewis against debts against them. The appellant claims one thousand five hundred dollars for services in the Margery Kenna suit, and one thousand dollars in the original suit of the Fowlers against Lewis’s Estate, which ended with a decree of seven thous- and five hundred dollars against the estate and is not the suit in which the land was sold, blow, at the dates when such services were reudered, was not the land yet land? It was not sold for years afterwards.
This claim can find no support either under the letter or spirit of the case of Renick v. Ludington, 16 W. Va. 378. It says : “An attorney has a lien on the judgment or decree obtained by him for his client for his services and disbursements in the case.” Lid J. S. Swann recover a judgment? bTo ; for the judgment was against his clients; and the services for which he claims were not in the same case in which the land was sold, but other cases, and those cases not so connected as to make them the basis of the recovery of a debt, or even for the continued defence of the estate.
In the case of Renick v. Ludington, the attorneys engaged for Renick to-recover of Ludington a debt under a contract between them. Ludington sued Reniclc to set aside that contract, so as to overthrow the debt. The same attorneys successfully defended this suit, and then recovered judgment for Renick against Ludingtou for the said debt. The court held these attorneys had. a lien for services in both those suits; the court saying the lien covers not only the services “in the case in which the judgment or decree is rendered,” but also the services “in any other case so connected with it as to form the basis on which such judgment or decree is rendered, or essential to the realizing of such judgment or decree.” Compare these two suits between Renick and Ludington — the one the salvation of the other, without the defence of which there would be no debt, practically a part of the process to realize the debt— *153with the connection between the Fowler and Henna suits against Lewis’s estate, and the Carr suit against Lewis’s estate, and see if the relationship is not wholly different.
But it is strenuously urged that the fund is in court, and, being in court, the court has a peculiar power over it because of that fact. The court has no power over it save to apply it to rights existing when it came into court. As the master of the rolls said in Cook v. Dealey, supra, the sale converts the land into personalty “only to the extent of the object required, but beyond that the rights of all parties remain the same as if no conversion or sale had taken place.” The appellant had no lien either when he rendered service or at date of sale, for it was land of the devisees. What magical influence creates this right to charge for the attorney’s demand ? Only that it is in the grasp of the court. But the court holds it in trust only for rights attaching to the land and the court can give only to proper owners. Can create a right by its order which is non-existent? In note on page 971, 1 Am. & Eng. Euc. Law, it is laid down that there is no lien for attorneys of distributees on a fund in court for distribution.
I can not concur in establishing the doctrine that when a fund belongs to an estate, simply because it is in the hands and power of a court, it shall be made to pay the fees of all the attorneys — plaintiff’s or defendant’s — connected with the case. If a dead man’s estate is before the court, shall attorneys who may have resisted some claims against the estate be allowed large fees .as a lien upon the assets? I know no law for it. Establish the practice, and the door is open wide to the demand of exorbitant fees, to the ruin of estates — taking from widows and children moneys which should sustain and comfort them. Some witnesses would rate the fee" at high figures; others, less. The court allows heavy compensation. Barely could an appellate court remedy it. If, simply because a fund is in court, such arbitrary allowances maybe made in the case of a dead man’s estate, why i.n every case of enforcement of judgments or mortgage liens may not a lien be declared in favor of attorneys defending against such liens ? Has the practice ever prevailed in Virginia? I can not concur in *154the introduction of the innovation by mere judicial action. The attorney is competent to take care of himself. If his compensation is not assured, he can decline to render service. If he renders it, let him make his contract and secure himself.
If the law, as it is, be not sufficient, let the legislature make proper regulations, as in England and many of our States has been done. I certainly am disposed to be fairly liberal to my own profession,but not at the sacrifice of the interests of the many. Ido not think that it would confer a benefit upon that honorable profession, comprising the brightest men and leaders in society, trusted by the public with their most vital, sacred and important interests, private and public ; but it would in the end bring the whole bar into disrepute and unpopularity, by the improper and cormorant use which would often be made óf the rule by the least meritorious of its members. An abuse we know it has become where it prevails. The United States Supreme Court in Trustees v. Greenough, 105 U. S. 527, condemns the practice of allowing large fees out of trust-funds now prevalent, and Mr. Justice Miller, in the same case, dissented and called it a “gross judicial abuse of the present day, namely, the absorption of a property or a fund which comes into the control of a court by making allowances for attorneys’ fees and other expenses.”'
The suggestion is made, though it was not in the argument claimed to have any influence in the case, that the land was partnership property between Fowler and Lewis. If joint between them, of course the moiety of each joint tenant would be realty, not personalty. But in fact the six thousand and six acres of Bull Creek land was not joint property but belonged to Lewis, aud Fowler claims no share in it. The bill of the Fowlers against Lewis’s estate, filed in 1858, asserted that Fowler and Lewis had been joint owners of a tract of twenty one thousand and twenty six and a half acres, and that Lewis purchased it at a sale for taxes in his own name and sold half of it to Allen M. Smith and that Lewis and Smith sold to divers persons parcels thereof and received the purchase-money, leaving a small residue unsold; and the bill, on the theory that Lewis *155bouglit the land and could hold it only for the equal benefit of Fowler and Lewis, and that Smith purchased half from Lewis with notice of Fowler’s right, sought to make Lewis’s estate and Smith account for proceeds of what they had sold, and to have a partition of the unsold residue; and the hill itself alleged Lewis to he owner of the Bull Creek land, never intimating or making any claim that Fowler ever had any interest in it; and it was attached in the suit to answer the debt of Fowler, and the bill asked that it he subjected to the debt. How can this land, for any purpose or in any way, be called or referred to as partnership land?
Our decision is as follows: Upon the appeal of Peter Fontaine, administrator of Sarah E. Lewis deceased and others, to affirm the decree of July 14, 1885, rendered on the petition for rehearing filed by P. W. Morgan, administrator, and others, vacating, to the extent therein specified, the decree of 15th of October, 1866, which confirmed the report of Commissioner Polsley; to affirm also the decree of July 15, 1885, rendered on a petition for rehearing filed by Fichólas Fitzhugh, vacating, to the extent therein specified, said decree of 15th of October, 1866; and to reverse the decree of July 1,1890, so far as it disallows and rejects as a lien, as to John ~W. Lewis, the judgment in favor of Sarah E. Lewis against Andrew L. Lewis and John W. Lewis for six hundred dollars with interest from 6th May, 1885, and eleven dollars and sixteen cents costs, because it is a lien as against lands of John "W. Lewis, and to affirm said decree of 1st July, 1890, in all other respects.
As in consequence of the allowance of the lien of said judgment the decree of July 2, 1890, distributing the fund under the control of the Circuit Court, and directing the Kanawha Valley Bank to pay moneys on deposit with it, becomes erroneous in part, that decree is reversed, so far as it directs the distribution and payment of the share of John W. Lewis, amounting to three thousand one hundred and twelve dollars and thirty six cents, with direction to the Circuit Court to enter a decree re-distributing the share of said John 'W. Lewis in said fund, allowing said judgment in favor of Sarah E'. Lewis against Andrew L. Lewis and John W. Lewis for six hundred dollars as a first lien *156on said John W. Lewis’s share in said fund, and then the residue as in said decree specified.
Our decision. upon the appeal of John W. Lewis is to modify the decree rendered on July 2, 1890, so that the right óf N. Fitzhugh or his assignees to three fourth parts of the interest of John "W". Lewis in the proceeds of the sale of the laud shall be subject to the judgment of six hundred dollars with interest from May 6,1855, and eleven dollars and sixteen cents costs in favor of Sarah E. Lewis against Andrew L>. Lewis and John W. Lewis as a first lien, prior to the judgment of 11. J. Ashby in said decree mentioned, and, as thus modified, to affirm said decree.
Our decision on the appeal of James V. Lewis and wife is to reverse the decree of July 2, 1890, so far as it confirms the report of Commissioner lluffner as to the assignment made by James Y. Lewis and wife to Thomas L. JBroiui, and decrees that said Broun and his assignees are entitled to the proceeds arising from the several assignments made by James V. Lewis and wife to said Broun, but without prejudice to Broun.
Our decision on the appeal of John S. Swann is to affirm the decree of July 1, 1890, denying him the relief prayed for in his petitions and amended petitions.
The cause is remanded to the Circuit Court for further proceedings to be had, according to principles in this opinion indicated, and further according to principles governing courts of equity.