Section 34-3-60, Ala. Code 1975, authorizes a trial court to award an attorney fee in a proceeding involving the sale for division of property and to tax such fee as costs of the action.
The origin of this Code section was a statute adopted by the Legislature in 1903. Penney v. Pritchard & McCall, 255 Ala. 13, 18, 49 So. 2d 782, 785 (1950).
The 1907 codification of this statute added the express condition that "the services must be for the common benefit of all." Id.
While some of the successive codifications, including the present one, have omitted the language that "the services must be for the common benefit of all," this Court has consistently maintained that condition on the trial judge's authority to award attorney fees pursuant to these codifications. Id. See, e.g., Irons v. Le Sueur, 487 So. 2d 1352, 1359 (Ala. 1986):
"Likewise, when attorney's fees are allowed under § 34-3-60, Code 1975, it is on the basis of, and solely for, the benefits inuring to the common estate and to the tenants in common and not involving controversy as to respective rights or interests of individual tenants in common. Pate v. Law, 277 Ala. 608, 173 So. 2d 596 (1965); Graham v. Graham, 207 Ala. 648, 93 So. 660 (1922)."