Booth v. Rosier

124 Ga. 154 | Ga. | 1905

Bece, J.

(After stating the facts.) It will be observed in this ease that there is no contractual obligation on the part of Rosier to pay attorney’s fees, nor was he a defendant who had as such filed a plea which he afterwards failed to sustain. Plaintiff in error must rely upon the stipulation in the deed and note for the right to proceed for attorney’s fees. But that stipulation was void- — -not merely voidable, unless the defendant in error or Pearson had done some act to give vitality and force to that stipulation, ,and the only act that they could have done to give force and effect to the obligation to pay attorney’s fees, embodied in the note and security deed, was to file a plea which upon trial should have proved to be without merit. Under the Civil Code, §3667, as it stood before the act of 1900, an obligation to pay attorney’s fees upon a note in addition to the stipulated rate of interest, whether such obligation be contained in the note or in the deed given to secure the note, is void unless that obligation is given force and effect by the 'defendant’s filing a plea or pleas which are not sustained. The section last referred to was under construction in the case of Hall v. Pratt, 103 Ga. 258, and in discussing its effect Lumpkin, P. J., said: “All contracts to pay attorney’s fees incorporated in promissory notes or other evidences of indebtedness must be construed in the light of section 3667 of the Civil Code, which by operation of law constitutes a part of all such contracts, and renders them void -‘unless a plea or pleas be filed by the defendant and not sustained.’ A promissory note, therefore, which stipulates for the payment of attorney’s fees in the event of its collection by law, must be construed as if it embraced a condition to the effect that such promise is not to be binding unless the maker of it files a plea or pleas and fails to sustain the same.” Plaintiff in error himself invokes the ruling in the case of Hall v. Pratt, supra, and contends that it is in one respect analogous to the case at bar, in that in both there is a third party who is attempting to escape the conditions of the statute by holding his principal passive while he urges a meritless defense; but the supposed analogy does not exist, for in the case just cited the party denying in vain his liability for attorney’s fees was not a third party relatively to the contract there sought to be enforced and which contained an obligation to pay attorney’s fees, for he had endorsed the note, and thereby became a_ party to the contract embodied therein, and, as the writer of that opinion says, “he also undertook and promised on his part the payment of attorney’s fees in the event he filed and failed to sustain a plea.”

The plaintiff in error contends that Hosier’s bill against Nichols was an attack upon the title of Booth as well as Nichols. The record in this case and that in the case of Rosier v. Nichols, 123 Ga. 20, do not support this contention. Booth would not have been concluded by a decision in behalf of Rosier in the case of Rosier v. Nichols. She had expressly declined to accept a proposed agreement to the effect that the judgment in the latter case should be conclusive as to her.

So Rosier had not sued Booth or failed to maintain as against her a meritless defense. If the latter had been delayed in the prosecution of her remedy, she had been delajnd by an agreement voluntarily entered into by her counsel to await the termination of a judicial contest that made her way plain before her, and she is not entitled to attorney’s fees as against this defendant in error.

As to Pearson, the grantor in the deed and maker of the obligation to pay attorney’s fees, that obligation is void. He has not been sued; or if the proceeding to exercise the power of sale in the deed be analogous or equivalent to a suit against him, it was voluntarily abandoned in consequence of an agreement with a third party, and the promise to pay attorney’s fees, so far as it affects him, is absolutely void. He never did aught to give it life or force. Stoner v. Pickett, 115 Ga. 653; Demere v. Germania Bank, 116 Ga. 317.

Judgment affirmed.

All the Justices concur.