
    JOHN VAN RISWICK vs. WARD H. LAMON.
    At Law. —
    No. 7403.
    I. The lien of a judgment-creditor upon real estate has priority over am. attorney’s lien for services rendered, the defendant in a subsequent suit involving the same property.
    III. Where such real estate is decreed to be sold in an equity suit, and the proceeds of the sale to be distributed among those entitled to them according to their respective liens, such judgment-creditor has the same preferable lien upon the proceeds of the sale.
    III. Where an attachment is laid in the hands of a garnishee, who is also trustee appointed in an equity suit to sell the real estate, and it appearing that he had performed the trust, and a balance remained in. his hands due to the defendant, the attachment was properly laid.
    STATEMENT OP THE CASE.
    The plaintiff had judgment against defendant, upon which there was an unpaid balance, and on January 9,1875, he issued two writs of attachment, which, with interrogatories, were served uponM. Ashford, esq., and R. K. Elliot, esq., who had been appointed trustees in chancery, cause No. 3509, pending in this court.
    The answers of the garnishees admitted that they held a balance of $446 and upward, being part of the proceeds of the interest of the defendant in the ground and premises described in said cause 3509, and which they had sold under the decree therein, but they also state that the same was subject to the lien of defendant’s solicitors in said cause. A reference to the proceedings in said equity cause 3509 discloses the facts relative to the creation of the fund in the hands of the garnishees and of its liability to attachment. The bill was filed therein December 10,1873, from which it appears that Lamon, the now defendant, became the purchaser of the real estate therein described at a confiscation sale, and consequently took a life-interest, per autre vie, in the property. But all the parties interested in the estate, for the purposes of paying off taxes and incumbrances, and dividing the proceeds equitably between them, agreed that the property should be sold, and thereupon a decree to that end was passed, and the defendant, Lamon, was allowed, in lieu of his estate per autre vie, three-tenths of the gross proceeds of such sale; and on December 22,1874, a final decree was passed, making distribution of the proceeds of the sale on that basis. The property having been sold on the 8th day of January, the trustee reported the amount realized to be $6,500, and on the ■same day, by consent, his report was ratified and confirmed.
    In the final decree there is no mention made of an attorney’s lien, and no provision in relation thereto. The attachments above mentioned were laid upon the balance of the proceeds of sale, coming to Lamon, still in the hands of the trustees. Before these proceedings were instituted, Van Riswick’s judgment had been recovered and had become a lien on the interestof Lamon in this property, and Messrs. Davidge and Wilson assert an attorney’s lien upon the fund attached for professional services rendered Lamon in the above-mentioned equity suit.
    The present proceeding is a motion to quash the attachments ; and, in support thereof, affidavits are filed in regard to the lien of Davidge and Wilson.
    The court below decided—
    1. That the attachment was properly laid in the hands of the chancery trustee; but—
    2. That the lien asserted by the attorneys was superior to the claim made by the attaching and judgment creditor, and: was entitled to priority in satisfaction. Both sides thereupon ■appealed.
    
      T. A. Lambert, for plaintiff, presented a brief, from which we abstract—
    1. As to the attachable character of the fund.
    
    This is dependent upon its predicament at the moment the writ was served. If, at that time, the money was still under the control of the court, and the trust unexecuted, its amenity to attachment might be a question of serious doubt. On the other hand, if distribution had been finally made, and the trustee, with the fund in his hand, and not brought into court, was directed to apply the same according to such distribution, its liability to attachment cannot be successfully controverted. Cockney vs. Leister, 12 Md., 129; Langdon vs. Luckett, 6 Ala., 727; McLaughlin vs. Swann, 18 How., 217.
    2, As to the lien asserted by the attorneys.
    
    This was either special or general.
    
    If the former, possession of the fund by the attorneys was essential to its successful assertion. This possession, we have seen, they did not have at the time of attachment, nor, in fact, did they ever have it. Wherefore their lien, if it exists at all, is general in character, and strictly subordinate to the pre-existing rights of the judgment-creditor. Hought vs. Edwards, 1 H. & N., 171; Walker vs. Sergeant, 14 Vt., 247.
    The lien of an attorney, while it binds his client, shall not be permitted to vary or affect the rights of third parties. Gager vs. Watson, 11 Conn., 173; Ramsill vs. Huntington, 5 Day, 163; Andrews vs. Morse, 12 Conn., 446; Forsyth vs. Beveridget 52 Ill., 268; S. C., 4 Am. R., 612.
    The judgment recovered by the attaching creditor in 1870 was doubtless a statutory lien upon defendant’s interest in the property sold. The conversion of that interest into money, by the medium of sale, in nowise impaired the operation of this lien. In fact, the fund, in its present predicament, can be regarded no otherwise than as the land itself; liable, like it, to be applied in satisfaction of the earliest existing, valid incumbrance, and, like it, wholly insusceptible of being affected by the lien of an attorney. Small vs. Clark, 22 Vt., 928; Davidson vs. Clayland, 1 H. & J., 550.
    The claim for a lien of this nature grows out of the creation of a fund. Wherefore, such claims are usually made by the plaintiffs’ attorneys. The right of the defendant’s attorneys bears no resemblance to the lien of the plaintiff’s; e. g., the former has no such interest in the suit as to prevent parties-from compromising it without his consent. Quested vs. Collis, 10 M. & W., 19.
    
      Walter D. Davidge and S. Wilson for defendant.
   t Mr. Justice Wylie,

after stating the case, announced the decision of the court to the effect following:

The question arising upon a consideration of the facts is whether the plaintiff, who was a judgment-creditor of the defendant long before the proceedings for the sale of the property took place, has a preferable lien upon the proceeds of the sale, or whether that preference belongs to the attorney of Lamon, by whom the proceedings were instituted and conducted which resulted in such sale.

Although the circumstances surrounding the case are somewhat complicated, this is the main question: Van Eiswick had a lien, by virtue of his judgment, upon the defendant’s interest in the real estate, which could not be divested by the sale without his consent. By the decree in the equity suit the proceeds of the sale-were to be distributed among those entitled, precisely according to the liens thereon as they existed upon the property before it was sold. The conclusion to which we have all come, therefore, is that Van Eiswick is entitled to the money, and that his claim must take priority over any claim of Lamon’s solicitors for their professional services.

We are also of opinion that as the money in the present case was a balance in the hands of the garnishees, due the defendant, the attachment was properly laid, for the trustee had performed the trust, with the exception of passing this balance to whom it belonged.

The decision of the court below, overruling the motion to quash, is affirmed.  