The language of the law. Part Latin, part Anglo-Saxon, all confusing.
On the 12th of September 1890, the Circuit Court of Jefferson County, Alabama, entered an order in the case of Mary Lee Boyle et al. vs. Helen Winn et al.
The decision, in Chancery, provided in part, for the payment of attorneys’ fees to James J. Garrett and Oscar W. Underwood by four different parties to the case, plus court costs, and then it went on:
It is further ordered adjudged and decreed, that James J Garrett and Oscar W. Underwood shall have a lien on the property involved in said cause for eight hundred dollars the amount of said fee’s heretofore allowed therein and that the Register in Chancery shall have a lien on said property for the payment of the cost in said cause and that the Register in Chancery shall pay the amount of said fee’s and the amount of said cost out of any money now in his hands belonging to said parties to said cause and it is further ordered adjudged and decreed that if the amount of said fee’s and cost are not paid within thirty-days from date, let execution issue.1
The case arose out of the death of Bartholomew Boyle, and the appointment of a guardian, Edward F. Lee, for his minor son Robert. Robert, represented by Garrett, said he wasn’t getting any money for his expenses or his schooling.2
You can follow the record of the case through and get loads of genealogical information: Helen Winn was the wife of H. I. Winn, the widow of Bartholomew Boyle, and the mother of the Boyle children; Jessie A. Boyle, Robert Boyle and Mary Lee Boyle were siblings; Mary had married during the case and was by 1890 the wife of Edward A. Averett.3
But that 1890 order with its talk of “a lien on the property involved” and, if not paid, “let execution issue.” What was that about? What exactly do those terms mean in this kind of a case?
By law-dictionary definition, a lien is a “qualified right of property which a creditor has in or over specific property of his debtor, as security for the debt or charge or for performance of some act.”4 The definition continues: “In every case in which property, either real or personal, is charged with the payment of a debt or duty, every such charge may be denominated a lien on the property. … A lien is a charge imposed upon specific property, by which it is made security for the performance of an act.”5
The creditors in this case were the lawyers, who wanted their fees to be paid, and the court itself, which had court costs that had to be paid as the result of the petition for legal fees. The debtors were the widow and children, each of whom was held responsible for a fourth of the fees and costs. And the land was land the children had inherited, and in which the widow held dower rights.6
The lien was a charge on the property owned by the Boyles, and, in general, land subject to a lien can’t be sold without the lien being paid, either before or at the time of the sale.
There are all kinds of liens for all kinds of debts — things called mechanic’s liens, for example, when a workman does work on property and hasn’t been paid yet,7 or vendor’s liens, when part of the payment for land hasn’t yet been paid over.8
But this court did more than just put a lien on the property. It went on to say if the fees and costs weren’t paid within 30 days, “let execution issue.” That was an order that allowed the lawyers and the clerk of the court to go on and have the sheriff execute the judgment of the court.9
And how do you execute an order that says pay up? You seize and sell the assets of the parties — in this case, the land.
Pretty powerful incentive to do what the court says, isn’t it?
What do we have here then? A “pay the fees or else” order.
The upshot was that a piece of land was sold… and then the heirs fought over who was supposed to get how much of the proceeds.
But that’s a story for another day…
SOURCES
- Directive order, filed 19 Nov 1890, Jefferson County, Alabama, 10th Circuit Court, Boyles v. Boyles, Old Chancery Court; Box 8586, case no. 600; Jefferson County Circuit Court, Birmingham; digital images, “Alabama, Jefferson County Circuit Court Papers, 1870-1916,” FamilySearch (https://familysearch.org : accessed 26 Feb 2017). ↩
- Ibid., Petition of Robert F. Boyle, filed 16 May 1890. ↩
- See e.g. ibid., Petition to Partition, filed 1 April 1890. ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 719, “lien.” ↩
- Ibid. ↩
- See generally ibid., 393, “dower” (dower is a “provision which the law makes for a widow out of the lands or tenements of her husband, for her support and the nurture of her children”). ↩
- Ibid., 763, “mechanic’s lien.” ↩
- Ibid., 1213, “vendor’s lien.” ↩
- Ibid., 455, “execution.” ↩
Why some things that ought to be in court records aren’t – court fees, attorney fees, etc add up, back then and today. Settle out of court and avoid costs and public notice. Wonder how much said education cost? Probably less than $800. Of course, this is more likely an issue of cash poor, property rich, a constant issue for farmers, then and today.
Most likely the only real cash asset was the land, and if one child was under age and needed cash support, selling the land was the only option.
So by suing for maintenance he ended up paying the court and lawyer? And the land was sold to pay the lawyer and court costs? What’s wrong with this picture?
The American rule is that each person pays his or her own legal fees, while the loser pays the court costs. In this case, all of the parties on all sides shared the same basic interests so they all paid the lawyers and shared the court costs.