(dissenting.)
This case comes before the Court upon a rehearing, a petition to that effect having been heretofore filed and allowed. The case will be found fully stated in the *157original opinion of the court, and we adopt that statement. That opinion was at the time concurred in by every member of the court, as the most satisfactory solution of a case somewhat complicated and difficult. That opinion discusses the right of the petitioner, Mr. John S. Swann, to as-sei’t a lien for professional services against a fund now under the control of the Circuit Court of Kanawha County.
So far as Mr. Swann’s relation to the two cases of Carr v. Lewis’s Heirs, etc., and Ashby v. Same, is concerned, we see nothing to change in or add to the opinion as already announced. It was in reference to his services in behalf of the administrator and heirs of John Lewis, in the case of E. M. Fowler and others v. John Lewis’s Adm’r and others, that a serious doubt was occasioned in the minds of some members of the Court, both as to the merits of the case, and as to some of the principles set forth in the syllabus. This doubt has occasioned a more thorough search into the principles governing the relations of an attorney and client, as heretofore decided by our own Court. Our own cases would seem to settle the foil owing principles :
An attorney has a right to a reasonable compensation for professional services rendered to liis client, whether he has conducted his case to a final decision or not — whether it has been compromised, or the attorney discharged and superseded by other counsel; and such attorney may recover in a court of law upon a quantum meruit. Polsley v. Anderson, 7 W. Va. 202. As a lawyer acts under his official oath, and is responsible to the court for the proper and faithful discharge of his duty, the presumption is in favor of his authority to act for any person for whom he appears. Low v. Settle, 22 W. Va. 387, 392. And, finally, an attorney has a lien on the judgment or decree obtained by him for his client for services and disbursements in the case, whether the amount of his compensation is agreed upon or depends upon a quantum meruit. Renick v. Ludington, 16 W. Va. 378.
The question whether or not the attorney’s lien extends to real estate has never before arisen in this State, and we have, therefore, to set precedent, rather than to follow. In England there have been decisions both ways, until the *158question was settled in favor of the lien by act of parliament. 23 & 24 Vict. c. 127, § 28; Barnesley v. Powell, Amb. 102; Shaw v. Neale, 6 H. L. Cas. 581. In several of the States the lien upon realty has been sustained — notably in Tennessee and Georgia — while in Illinois, Michigan, and other States the lien has been confined-to personalty. See Brown v. Bigley, 3 Tenn. Ch’y 618; Wilson v. Wright, 72 Ga. 848.
In this conflict of authority, and in the absence of all decisions upon the point in this State or Virginia, we are at liberty to decide the question in such manner as may be most conducive to public policy, and in accord with the spirit of our registration laws. The latter laws have been from time to time expanded in such manner as to distinctly indicate a legislative policy to abolish all secret trusts and liens upon real estate.
Thus, in the case of Withers v. Carter, 4 Gratt. 407, it was held that, while a deed was void as to creditors and purchasers without notice unless duly recorded, yet an execu-tory agreement or similar writing need not be registered in order to effect alien upon real estate. Thereupon the legislature, with reasonable promptness, enlarged the act by amendment so as to include all executory writings. And so the lien for purchase-money, which had existed from time immemorial, was finally abolished, except in cases where declared by an instrument duly recorded, either by way of reservation or direct grant. Code 1891, c. 75, § 1, p. 652.
The question then remains, whether we should not be controlled by the enlightened and remedial spirit of our registration laws. I am decidedly of opinion that we should be so governed, and that we should not give our sanction to any new and secret lien upon real estate. This disposes of the question, so far as the interest of Mr. hT. Fitzhugliis concerned, and all other purchasers of laud from the Lewis heirs, who purchased without notice, aiid have the legal title.
The only remaining question to be disposed of is whether or not the appellant Mr. fáwann is entitled to be compensated' out of the fund now in court for services rendered to *159tlie heirs and administrator of John Lewis in the suit of E. M. Fowler, et al. against said heirs and administrators, under the conditions and exceptions already noticed, as to vendees of the realty.
I do not think, in our former opinion, we paid sufficient attention to what this Court had already decided in Renick v. Ludington, 16 W. Va. supra. Careful attention to an analysis of that case would have relieved us of some difficulties which apparently were not very happily surmounted. That case establishes the following propositions as law in this State: (1) The attorney’s lien may attach upon a judgment or decree obtained for a plaintiff for services rendered to him in a prior case, in which he was defendant, if the prior case were so connected as to form the basis of the ultimate recovery. (2) The lien is not limited to taxable costs, but extends to reasonable compensation for legal services actually rendered. (8) The lien is not by virtue of any statute, but exists at common-law. (4) It is an equitable lien and has priority over all intervening assignments of the judgment, whether made with notice or without.
This case, therefore, effectually disposes of the question as to whether there can bo a lien in favor of the attorney who gives his services for a defendant, when such services lead up to an ultimate recovery of a fund, the fruits of the attorney’s labor, or to which his labor has contributed. The whole spirit of this decision, as embodied in the able opinion delivered by Judge Gb.een, is comprehensive and liberal, basing the argument, not upon barren technicalities, but upon equity and just reason. In this case Judge G-been says :
“While the lien of the attorney is a special lien for his services in obtaining the particular judgment or decree only, yet the principles on which it is based obviously extend the lieu to all his services rendered in obtaining the particular judgment or decree, though those services may not all have been rendered in the particular suit in which the judgment or decree was obtained, but were in part rendered in other suits, all tending to and finally ending in the judgment or decree on which the lien is claimed.” * * * * “The lien of an attorney on his client’s judgment *160was allowed in England, not because bis fees were taxed in the costs, but was founded in natural equity, which forbids that a party should enjoy the fruits of a cause without satisfying the legal demands of his attorney.”
The doctrine thus enunciated by Judge Q-reeN, and concurred in by the full Court, was no new doctrine, but was taken, not only in spirit, but almost in the very letter, from the highest courts of England, as expressed more than fifty years before the attorney’s lien was fixed by act of parliament. Wilkins v. Carmichael, Doug. 101; Read v. Dupper, 6 Term R. 361.
The inquiry, therefore, as to a fund under the control of the court relates, not to the position of the beneficiaries as plaintiffs or defendants, but more properly to the question whether those beneficiaries are about to distribute a fund among themselves which their attorney has preserved for or secured to them, or has materially aided by his services in such advantages and benefits. For example, take the case of two partners, one of whom sues the other for a settlement and account. Eventually a large balance is decreed in favor of one partner as against the other. The attorney of the successful partner petitions the court for compensation out of the fund resulting as the fruits of the litigation. Now, what possible difference can it make whether such successful partner was plaintiff' or defendant ? In conscience, reason and common sense the attorney is equalty entitled to compensation from the fund to which he looked and which he has preserved, whether his successful client figured on the record as plaintiff'or defendant.
This point is substantially settled by Renick v. Ludington, supra. The first case arising between those litigants was one in which Ludington sought to set aside a contract. Re nick was there defendant, and was successful. His attorney then instituted an action in his name against Lud-ington upon the contract unsuccessfully assailed, and obtained a judgment. Upon this judgment this Court held that the attorney was entitled for his services rendered.as well in the case where Renick was defendant as where he was plaintiff; and it is very illogical, not to say idle, to suppose, if the judgment had been rendered in the first *161suit, without the necessity of a resort to a second, that this Court Avould have refused to enforce the lien of the attorney upon the ground that his client was a defendant.
These principles, easily deducihle from the broad and comprehensive vieivs of our own Court, are abundantly sustained by authorities. Thus, it has been said by Mr. Weeks: “The lien of a solicitor upon a fund in court, which is the result of the proceedings, can not be defeated by the subsequent insolvency of the client. The assignees of the insolvent can only take the property subject to the claims by which it was affected against him.” Weeks, Attys. § 368. Again: “The particular lien also attaches to the fruits of the judgment or decree which the attorney’s services have obtained. But it is said he has no lien on a cause till judgment is entered. The lien attaches to money payable to the client under the judgment or by virtue of an award, or paid or payable into court in the course of an action at law or in equity, or to real estate recovered by a solicitor prosecuting a suit in equity to a decree; and the lien has been held to attach on sums received or payable upon compromises, even where the verdict and judgment were against the client, on the ground that the money is the fruit of the labor and skill of the attorneys.” Id. § 369.
To show that our courts are not governed, in regard to this lien, by any narrow or contracted spirit, we may cite the decision of the Supreme Court of the United States in a very novel and interesting case,. The question arose whether the lien of an attorney would attach for his services in an award made by an international commission; and the court held that it would. This was upon the broad and general principle that the question should be tested by the criterion of whether or not the fund about to be obtained or distributed had been secured or materially increased by the attorney’s services, and not by any technical or subsidiary question as to the nature of the proceeding or the relation of the client, as plaintiff or defendant. Wylic v. Coxe, 15 How. 415.
Let us now apply these principles to the case in hand, so as to ascertain whether, in the opinion originally ren-*162clerecl, we did not to some extent misconceive both the principles of the law as settled in our own State, and their application to one particular branch of the controversy before the Court. Let us revert now to certain facts disclosed by the record and undisputed. In the original suit of E. M. Fowler against Lewis’s administrator and heirs, the first appearance by all the defendants is through the appellant J. S. Swann, who it seems, filed a demurrer in their behalf. If at that time he had any associate counsel, it was Mr. Broun, who, it appears from a letter of his (to be found iir the record) relied upon this demurrer as one which would probably defeat the Fowler claim. How, as we have seen, this appearance by Mr. Swann is prima facie evidence of his right to represent the heirs and personal representatives of John Lewis. Has this prima facie case been anywhere' sufficiently rebutted in the testimony.
The unsworn to answers of the heirs and administrator, denying such employment, is no evidence at all; and the testimony of associate counsel might very properly be interpreted as not in direct conflict with that of Mr. Swann and his brother T. B. Swann. The appearance was for all the heirs and the estate of John Lewis. It appears, further, that the answer of Andrew D. Lewis, as domiciliary administrator or executor of John Lewis, was filed by Mr. Swann with the knowledge and by the authority of said personal representative. That the domiciliary administrator had the right to employ counsel to defend the estate will hardly be seriously questioned. At a later day, and after the civil war, in 1867, we find Mr. Swann filing exceptions to a commissioner’s report, in which the debt due to Fowler was reported at a large sum.
It is objected that these exceptions were filed after Mr. T. L. Broun, who was associate counsel, had effected a compromise, which he thinks was substantially achieved some time in 1866. But Mr. Broun further testifies that Judge Brown, who was representing the Fowler claim, refused to let the compromise become an accomplished fact until the court should confirm the sale of the Bull Creek lands, which confirmation was not obtained until the 9th of October, 1867.
*163While Mr. Broun was bringing about this compromise, and effecting the sale of the lands, and exercising rare ability and skill in accomplishing these beneficial results, it would seem to have been highly important to have some one at home, supervising the interest of the Lewis estate, as counsel for said estate and the heirs. This function, as appears by the record, was performed by Mr. Swann; and had Mr. Broun’s efforts failed, as happily they did not, those of Mr. Swann would no doubt have been more conspicuously beneficial; and it is impossible to say how far his services influenced the representative of the Fowler claim to agree 'upon terms and consummate the compromise.
Still later on, in 1885, the record discloses a consent-decree with regard to the sale of the Bull Creek tract to one J. W. Ilumbird. It is signed by John S. Swann as attorney, though it is not stated for whom he appears; but the presumption .is that the original employment continues, unless there is something to indicate a discharge by the client. This brings us down to within six weeks of the time of the filing of his first petition in the associated causes. Bart. Law. Pr. 75.
It would seem, therefore, that, from the origin of this suit down to the time when the fund now in court was realized, the record discloses the appearance of Mr. Swann as counsel. ITis prima facie case, therefore, is perfect, and Ave have not been able to find any sufficient evidence tending to rebut or overthrow it.
As Ave have seen, the attorney’s lien attaches to a judgment or decree in favor of lfis clients, whether they be plaintiff's or defendants; and if the service is admitted or proved by the record, in the absence of any specific contract, he has a lien upon the fund under the control of the court, and about to be distributed, for a quantum meruit compensation. It Avill be observed that in this branch of the case the questiou whether an attorney has a lien upon realty is not at all involved. This was a suit by one partner against his copartner for an account and division of assets. The realty as to Avhicli the claim Avas asserted was attached, and under the dominion of the court. It was *164sold finally, not by .judicial process at public auction, but by consent and by agents appointed by tlie court, whose private sale the court had to confirm and did confirm before it became effectual to convey title. Upon the plane which our own Court has reached, and which, indeed, was attained by the common-law, we must be governed, not by tech-nicalties,butby what Lord Kenyon styled “the convenience, good sense and iustiee of the thing.” See Ormerod v. Tate, 1 East 465.
To assert a lien and enforce it upon a fund such as that now in the hands of the court, would be accompanied by none of the inconveniences which, as we have seen, would attend the lien if fastened upon the land itself in such manner as to interfere with its alienation. "Where the reason for excluding this lien from the realty ceases to exist, the exclusion itself is left without reason to support it and should not be applied.
As was decided in Renick v. Ludington, supra, those who have acquired, not legal titles, but mere equitable titles, by virtue of assignments, must be held subordinate to the lien of the attorney, because, as Judge GtRBEN explains, between equities, other things being equal, the first shall prevail. Qui prior est in temp>ore, potior est injure.
The lien attaches in favor of Mr. Swann upon the decrees in the cause and the interests of his clients thereunder. See Irving v. Viana, 2 Younge & J. 70.
'With reference to the amount, as the opinion of the majority of the Court is adverse to the claim, it is not necessary to make any observations. In justice to Mr. Swann, however, the fact that he expresses his willingness to take “whatever the court and commissioner may think right” should shield him from any adverse criticism, or animadversion upon the nature or extent of his claim. Certainly a case of this character does not call for any severe strictures upon the practice of the profession in this State with reference to asserting liens upon the funds of their clients under the control of the court. The case of Renick v. Ludington, was one in which the demand of the attorneys bore a very much larger proportion to the fund recovered, and yet the eminent j urist who delivered the opinion of the *165Court in that case did not feel called upon to contribute anything to the ethics of the profession upon the subject of overcharging for services rendered.
Modified. AeeiRmed.