36 S.C. 19 | S.C. | 1892
The opinion of the court was delivered by
We will adopt in a large measure the statement of the facts of this cause as embodied in argument of Messrs. Abney & Thomas, appellant’s attorneys. John W. Lee, on the 18th day of February, 1853, executed and delivered to Hugh L. Boyd a mortgage on a certain tract of land in Lexington County to secure a sealed note, dated 31st January, 1853, for $1,700. It appears that the wife of John W. Lee did not renounce her dower on this mortgage. Lee died in 1864, leaving as his heirs and distributees 'his widow, Mary L., and his three grandchildren, Eugene G., John W., and' Joseph E. Lee.
Some time in the year 1869, Mrs. Boyd, as administratrix, filed her bill for the foreclosure of said mortgage in the Court of Equity for Lexington County against Mrs. Lee as executrix, and the other Lees mentioned above, asking for a sale of the mortgaged land and the application of the proceeds of sale to the payment of her debt. The executrix of Lee'answered, claiming that she, as widow of John W. Lee, deceased, was entitled to dower in said land, and asked that the same should be admeasured to her before the decree for foreclosure should be passed. She also claimed homestead in the mortgaged premises, and alleged her willingness to account as executrix for the assets of her testator’s estate. The other defendants made formal answer. Such proceedings were had under this bill that the claim of homestead was denied, but the executrix had admeasured to her 117 acres of land as her dower, and she was placed in possession thereof. The plaintiff had an order that the amount reported as due upon her note and mortgage be confirmed. Judgment was rendered on 26 May, 1871, ordering the mortgage held by plaintiff foreclosed, and lands, other than dower lands, sold to pay mortgage debt; in ease there should be a deficiency in the proceeds of sale to pay plaintiff’s debt, the plaintiff should have judgment for such deficiency. No papers or records show anything being done subsequent to 26 May, 1871, until 1877, when there seems to have been an order dismissing some motion to docket the cause. Mrs. Mary L. Lee died on the 2 April, 1888.
On May 2, 1888, Mrs. E. E. Fort (formerly Mrs. E. E. Boyd) wrote Mr. G. T. Graham, an attorney practising his profession at Lexington, informing him of Mrs. Lee’s death, and requesting him to examine the records and tell her what charge he would make to take the necessary proceedings in law to sell the 117 acres assigned to Mrs. Lee as dower, the fee to be paid out of the proceeds of sale. In Mr. Graham’s reply, on the next
In September, 1889, Judge Norton passed the following order in the cause: “It appearing to me, from statement of counsel, that matters of disagreement have lately arisen between Mrs. E. E. Fort, the petitioner herein, and her attorney, G. T. Graham, Esq., and that the said Mrs. Fort has notified Mr. Graham that she does not desire him to act longer as her attorney ; and it further appearing from such statements that Mr. Graham claims an interest in whatever amount may be recovered or received by the said Mrs. Fort under this proceeding, and for compensation of services rendered or to be rendered her as her attorney in this' behalf, and the said Graham expressing a willingness to retire from this case, provided his rights are reserved as to any claim or lien he may have in the moneys to bé received by Mrs. Fort by reason of this proceeding, the same as if he were still her attorney and rendering the services agreed on; and it further appearing that the said Mrs. Fort has employed Messrs. Melton - and Melton as her attorneys to act in the place and stead of the said G. T. Graham, Esq.: It is ordered, that the names of Melton & Melton be entered on the dockets of this court as appearing for Mrs. E. E. Fort in the place and stead of G. T. Graham,
Messrs. Melton & Melton declined to attend the reference before Mr. Shand, upon the ground that they had nothing to do with the matter, before the referee. R. W. Shand, Esq., as said referee, submitted<his report to the court on this matter on the 9th February, 1891, and it came on to be heard before Judge Hudson on the 27th- of. February, 1891. By the report of Mr. Shand, it was established' “that there was no definite agreement between Mrs. Fort and Mr. Graham as to the fee to be paid Mr. Graham for the services he has rendered. If the scope of the reference (as I think it does) embraces the question of what would be a reasonable fee to Mr. Graham for his services in this matter, I find as a fact that twenty per cent, of the amount recovered for Mrs. Fort under this litigation would be a reasonable fee.”
Judge Hudson declined to sign an order directing the clerk of court, in whose hands the funds were at that time, to pay 20 per cent, thereof to Mr. Graham. The Circuit Judge in his decretal order, amongst other things, held: “The finding of the referee as to the amount of the fee to which Mr. Graham is entitled is not in my judgment within the scope of the order of reference. But if it were, it would be nugatory and unavailing in this proceeding. In an action of this nature for the foreclosure of a mortgage, the attorney has no claim for his services, or lien upon the fund in court; and without the consent of parties the court is without authority to determine the amount of compensation to which Mr. Graham may be entitled for his services as attorney herein, or to order the payment of it out of the fund in court. The parties are both sui juris, competent to contract for themselves ; and if they cannot agree, then whatever liability may
Mr. Graham appeals ipom this order of Judge Hudson upon the following grounds:
1. Because the presiding judge erred in deciding that the finding of the referee, R. W. Shand, under the order of reference of September, 1889, as to the amount of the fee to which G. T. Graham, Esq., was entitled, was not within the scope of the order of reference.
2. Because the presiding judge erred in deciding that were such finding within the scope of the order of reference, it was nugatory and unavailing in this proceeding.
3. Because the presiding judge erred in deciding that in this proceeding. Mr. Graham, the attorney for Mrs. E. E. Fort, as administratrix, has no claim for his services or lien upon the fund in court; whereas he should have found from the proceedings and the report of the referee that the said Graham had a claim for his services, payable out of the fund in court.
4. Because the presiding judge erred in not finding and deciding that Mrs. Fort had consented that the court should determine the question of the fee between herself and Mr. Graham, and that the court had authority and jurisdiction to order said fee to be paid out of the fund in court.
5. Because the presiding judge erred in finding that Mrs. E. E. Fort objected to the passage of the order of reference, there being no proof before him whatever to that effect.
6. Because the presiding judge erred in deciding that Mrs. E. E. Fort was not bound by that order of reference, the same not being appealed from, but was acquiesced in, and she voluntarily appeared before said referee and took part in said proceeding.
7. Because the presiding judge erred in not confirming the report of the referee, the same not having been in any way excepted to by the said Mrs. Fort, or its findings or conclusions disputed.
8. Because the presiding judge erred in holding that Mr. Graham could not in this proceeding enforce his claim for services, but must resort to an action at law; whereas all the proofs
9. Because the presiding judge erred in, declining to consider the proceedings had in behalf of Mr. Graham and dismissed the same.
10. Because the presiding judge erred in refusing the motion to confirm the report of the referee, and requiring the clerk to pay over to Mr. Graham the amount found by the referee to be a reasonable fee for him out of the funds in his hands belonging to Mrs. Fort.
It is the judgment of this court, that the judgment of the Circuit Court be affirmed.