84 S.E. 696 | N.C. | 1915
Petition of interveners Harry Skinner and F. G. James in above entitled cause. His Honor rendered judgment in favor of the interveners upon the pleadings, exhibits, records, affidavits, orders, judgments, and decrees in the cause.
Plaintiffs Tabitha De Visconti and B. S. Sheppard and wife, Sue May Sheppard, appeal. The record discloses that on 3 November, 1910, Addie G. DeVisconti made two contracts with Henry Clark Bridgers, whereby she undertook to convey to him one-half of 25 acres of land in the town of Farmville. The said land was to be developed and laid off into lots and she was to have one-half of the lots and Henry Clark Bridgers the other half, and the depot was to be located upon the property when the railroad was completed to Farmville. She also conveyed to him for the consideration of $1 a right of way 100 feet wide through her lands near the town of Farmville, and depot site.
Mrs. DeVisconti lived about one year, and died in November, 1901. She left surviving her one son by a former marriage, named Paul C. Dupree, and two daughters, Tabitha De Visconti and Sue May DeVisconti. These last two were infants, and F. M. Dupree, their uncle, was their guardian.
After the death of Mrs. Addie DeVisconti, her sister, May Sue Albritton, qualified as guardian of her three infant children, Paul C. Dupree, Tabitha DeVisconti, and Sue May DeVisconti, and employed the petitioners, F. G. James and Harry Skinner, to bring suit to set aside and declare void the above deeds which Henry Clark Bridgers had secured from her sister, on the ground of mental incapacity on the part of the said Mrs. DeVisconti and the unconscionableness of the bargain.
(426) The guardian employed the interveners to bring the above entitled action to set aside the contracts. She made frequent visits to said attorneys and consulted with them in reference to the matter, in consequence of which the action was instituted by said attorneys, who prepared and filed the elaborate complaint set out in the record, and otherwise prepared the case for trial after the defendant had answered and joined issue. Mrs. Albritton died and F. M. Dupree was appointed guardian for the two feme infants. Paul C. Dupree had become of age, and then this instrument, it is admitted, was duly executed:
Memorandum of agreement made this the 10th day of March, 1911, between Paul C. Dupree and F. M. Dupree, guardian of Tabitha De Visconti and Sue May De Visconti, parties of the first part, and Harry Skinner and F. G. James, parties of the second part:
Witnesseth, that in consideration of $100 and legal services to be performed, the parties of the first part agree to allow and pay to the parties of the second part one-half of their recovery in the case of Paul C. Dupree and F. M. Dupree, guardian of Tabitha De Visconti and Sue May DeVisconti, against Henry Clark Bridgers, and to this end the parties of the first part have bargained, sold, and conveyed to the parties *505 of the second part a one-fourth interest in the lands fully described in the first and twelfth sections of the complaint filed in this cause.
In testimony whereof, the said parties of the first part have hereunto set their hands and seals the day and year above.
PAUL C. DUPREE. [SEAL] F. M. DUPREE. [SEAL] Witness: WINNIE SKINNER.
Paul C. Dupree verified the complaint. The defendant Bridgers employed counsel and filed an answer and otherwise defended the action.
Pending the action, Paul C. Dupree died and his interest in the lands descended to his two sisters, Tabitha and Sue May. It is admitted that on 2 April, 1913, Tabitha DeVisconti, Sue May, who meanwhile had married Ben. S. Sheppard, and Paul C. Dupree, without their attorneys' knowledge and consent, conferred with Henry C. Bridgers, the defendant, compromised and settled the action by a written agreement entered into and set out in the record, whereby certain parts of the lands sued for were relinquished and conveyed by said defendant to the plaintiffs. A consent decree was entered by Judge Daniels in the cause, carrying out the compromise and discharging Henry C. Bridgers from the case.
This decree provides, "that it is made without prejudice to the matters and things in controversy between the plaintiffs and the interveners in this action, which said matters are retained for further orders."
Under the written agreement of 10 March, 1911, the interveners (427) claim only a share of the land recovered for Paul C. Dupree, who executed the contract or conveyance after he became of age. His Honor, Judge Peebles, refused to give judgment for any portion of the feme plaintiff's shares, as they are under age, but adjudged that as Paul C. Dupree was admitted to be of age when he executed the agreement, the interveners were entitled to recover one-half of one-third of 5 1/2 acres of land recovered for him under the written agreement.
The plaintiffs demanded a jury trial and tendered certain issues, viz.:
At the hearing of said petition the said Mrs. Sheppard and Miss Tabitha DeVisconti tendered the following issues:
Did the intervener, Harry Skinner, render any service to the estate of Tabitha DeVisconti and Sue May Sheppard? Answer:.........................
If so, what was the value of such service? Answer:....................
Did the intervener, F. G. James, render any service to the estate of Tabitha DeVisconti and Sue may Sheppard? Answer:.........................
If so, what was the value of such service? Answer:....................
His Honor very properly refused to submit these issues. The execution of the agreement by Paul C. Dupree is admitted and the interveners *506 claim nothing of the other plaintiffs, although it is certain that they profited largely by the action; but plaintiffs, Tabitha and Sue, deny that they "added anything to their comfort or estate in doing so." At the same time they admit they compromised the action without their attorneys' knowledge and recovered some very valuable land in consequence thereof, although they aver that their mother was fully competent to make the deed to Henry C. Bridgers and allege that this action ought never to have been brought.
If these are the real views of the plaintiffs, it would seem that they should return the land to the defendant. The services which the interveners rendered appear in the record in this case. It is admitted that they advised, after many conferences and examinations, the bringing of this suit. It appears that they issued the summons, filed the bond, prepared and filed the complaint, and prepared the case for trial. They were prevented from trying it by the action of the plaintiffs and defendant. The interveners do not claim upon a quantum meruit, and no such issue is raised by the pleadings in this case. The interveners claim Paul C. Dupree conveyed to them, by the instrument above set out, a certain interest in the lands describd [described] in the complaint.
It is not alleged that the said paper-writing was obtained by fraud or that any undue advantage was taken of the grantor in it by these interveners. It is well settled, when an attorney and his client agree in writing as to the amount of compensation to be paid, such agreement is valid, in the absence of fraud. Weeks of Attorneys, p. 580. Nor (428) is this agreement revoked by the death of Paul C. Dupree. It is held that when a party entered into a contract with an attorney, fixing his fees for the recovery of property, the death of the maker of the contract did not revoke it, but that the same was binding upon the funds and constituted an equitable assignment of the same. 15 Howard's Practice Reports, p. 416.
Written contracts between attorneys and their clients are to be treated and enforced as all other contracts, and in the absence of fraud, coercion, or undue advantage, the amount of compensation agreed upon in the contract is held to be conclusive and binding between the parties. Weeks on Attorneys, p. 582; 4 Cyc., p. 987, and numerous cases cited in Note 78; 3 A. and E., 434.
An agreement between an attorney and client that the attorney shall have a lien on the judgment is decisive as to the existence of the lien and its amount. 4 Cyc., p. 1006.
We think, furthermore, that the interplea in the original cause is the proper remedy. That was the remedy pursued in the case of Barnes v.Alexander,
The judgment of the Superior Court is
Affirmed.
