47 Iowa 542 | Iowa | 1877
Lead Opinion
The first question presented is as to whether the order, being merely to sell the equitable interest of the estate in the land, was sufficient under the circumstances to enable the administrator to sell and convey the title. The interest of the estate in the land appeared of record to be simply an equity of redemption. Under the order that is what was offered and what was sold. There was in fact no equity of redemption belonging to the estate, and we are of the opinion that nothing passed by the sale. A similar principle was decided in Dougherty v. Linthicum, 8 Dana, 194, and Bullard v. Hinckley, 6 Greenleaf, 289.
III. The court below decreed the sum of $150 and interest thereon, amounting to $240, to be paid to the defendant Geo. W. Burton. In this it is claimed by the plaintiffs that the court erred. This money was decreed to be paid to Burton to reimburse him for money alleged to have been paid by him to the estate upon the administrator’s sale to McCeney, which the court set aside as'invalid. It is contended by the plaintiffs that no such payment was in fact made by Burton. As to whether such payment was made, the evidence is very unsatisfactory. The land was sold nominally to McCeney for $150. The administrator reports the .receipt of that amount. It was not paid by McCeney, as is shown by his testimony. The evidence tends to show that the land was purchased in his name for Burton. If the land was in fact purchased for Burton, the purchase money should have been paid by him. Perhaps it was paid by him, but we find no evidence which we think would justify us in so holding. In this we think the court below erred.
Previous to the November Term, 1867, Griffith & Knight were the attorneys for the estate, and as late as November, 1872, a further answer was filed by Knight & McNulty, attorneys for the defendants therein. The cause was tried on the 7th day of December, 1872, and just previous thereto Griffith & Knight withdrew from the cause, and it will be assumed that thereafter Mr. McNulty had the sole management of the case.
The result of the trial in the District Court was the defeat of the plaintiff. The substance of the action was to secure the foreclosure of two mortgages. The one on the land in controversy being for an amount equal, or nearly so, to the value of the land. There was an appeal to this court, and so much of the judgment of the District Court as determined there could be no recovery, or foreclosure on the land in controversy, was affirmed.
It will be assumed, if the estate had any interest in the controversy, that the services of Mr. McNulty were valuable and he should be paid therefor by the estate, unless he undertook the litigation at the request of others with the intent of solely looking to them for his pay, or unless he is precluded from so recovering in other respects.
In 1866 an order was made empowering and directing the administrator to sell whatever interest the estate had in said lands. Such sale took place in January, 1867, and Edward McCeney purchased the same subject to said mortgages. Mr. McCeney, however, did so at the.request of Burton. Whatever title McCeney got remained in him until after the trial of the Shine case in December, 1872, when at the request of Burton he conveyed one undivided half of the lands in controversy to Quigley, for the use and benefit of the widow of Malony, one-fourtli to Burton, and one-fourth to Mrs. Mc-Nulty, wife of the defendant McNulty. The conveyance being made to Mrs. McNulty because Mr. McNulty so directed.
The evidence points strongly to Mr. Burton, as the person most active in bringing about this arrangement. The conclusion is strongly supported that it was believed all right or title of the estate in and to the lands was divested by the sale; that the title thereto subject to the mortgage was in McCeney tobe disposed of by him as Burton should direct, and McCeney testifies he did so convey. The conveyance to McCeney was in January, 1867; in November following, Mr. McNulty for the first time appears in the action to foreclose .the mortgages as attorney for the defendants. He testifies the lands were conveyed to his wife “as pay for my professional services as an attorney in the foreclosure cases.” He was asked to state the agreement under which he obtained the conveyance. To this he replied, “ I decline giving the agreement, my resollection is that I was employed by alkthe defendants in that case and represented them all in the trial of that case.” To a question with whom was your agreement made, he replied, “ I decline answering further than that I was employed by all the defendants and was to receive this land for my services.” He also states “ Burton told me if I would defend the suit successfully he would pay me either the land or its equivalent.” If the mortgages were held valid Mr. McNulty was to get nothing, if invalid, one fourth of the land.
When this contract was made it was believed as we have said the estate had no interest in the land, having, as the parties to the contract believed, sold the same to McCeney who was to and did convey as Burton directed. Mr. McNulty must have understood that he was to look only to Burton for his pay, and Burton is the Only person he is able to state that ever agreed he should be paid. We feel certain the administrator never agreed to pay
• We believe it to be true beyond question, from Mr. McNulty’s own testimony, that the estate was regarded as a mere nominal party, his clients in fact being Burton, Quigley and others.
Whether Mi*. Burton is living or dead we are not advised. The presumption is he is living, as his death is not shown nor any reason given why his testimony was not taken. This we regret and cannot help feeling this is strange and not according to the usual course. Our regret is increased because of the fact that McNulty refused to state what the agreement was or who it was made with. We are impressed that the court erred in allowing Mr. McNulty to recover.
YI. A part of the land in question was conveyed by McOeney to the defendant Quigley, brother of the defendant Maria A. Smith, formerly Maria A. Malony. The court below charged her with the rent of this land, to-wit, the sum of $650. It is claimed by the plaintiffs, and must have been so found by the court, that the conveyance was made to Quigley in trust for his sister, Mrs. Smith. Without questioning the correctness of this finding, we think the court erred in charging Mrs. Smith with rents. The title of the heirs not having been divested, if she is liable for rents she is liable to them. Foteaux v. Lepage, before cited. The costs in this court must be paid one-half by plaintiff and one-half by defendants.
Modified and affirmed.
Dissenting Opinion
I think that the evidence shows that McNulty was employed by all the defendants, including Guthrie, and that the Circuit Court did not err in allowing him, under the circumstances, payment for his services.