Harton v. Amason, 71 So. 180

Harton v. Amason

71 So. 180 | Ala. | 1916

McCLELLAN, J.

The appellee, an attorney at law and solicitor in equity, filed this bill, against appellants and others, to have declared and enforced his right to compensation for services rendered by' him under written contract with his client (ap*597pellant) H. M. Hartón, in litigation instituted by said Hartón. The dominant purpose of the bill is that just stated. All other matters with respect to which relief is sought are but incidental to the major purpose of the bill. In the written contract between appellee and Hartón the measure of appellee’s compensation was fixed at a “sum of money equal to one-fifth the value of fifty shares of the capital stock, including all accrued dividends due and payable thereon, or that may become due and payable on the same, of the Ensley Realty Company, on the rendition of a final decree in said suit, * * * or upon the compromise and settlement of said suit, if the same should be compromised and settled without being prosecuted to a final decree,” further providing a limitation on the compensation to $10,000. The agreement did not purport to satisfy the appellee’s charge for compensation out of the shares of stock of the corporation. The contract, ex vi termini, did not impose a charge upon the shares of stock to assure the payment of the appellee’s compensation for professional services. The only effect of the allusion to the capital stock was to measure the amount of the appellee’s compensation. The litigation and all related, assumed, or anticipated bases of claim or controversy were compromised and settled by all the parties concerned in the assertions of right or claim made by Hartón; the formally executed written agreement to that end being exhibited with the bill. No final decree consistent with Harton’s theories of his asserted claim or right was rendered. This agreement of compromise and adjustment was submitted to appellee, who, the bill avers, indorsed thereon his consent thereto in these words: “I hereby consent to the foregoing agreement of settlement.” On the exhibit his indorsement is thus phrased: “I hereby approve the foregoing agreement of settlement.” In the agreement of settlement no reference whatever was made to appellee’s compensation for his services to Hartón, or to any obligation Hartón was under to appellee because of services rendered to Hartón by appellee as Harton’s professional representative.

It is averred in the amended bill that the professional services were rendered in cause numbered 5443, “which was a suit for money, among other things.” In the agreement of compromise it was provided that cause numbered 5443, then pending in the Supreme Court on appeal by Hartón from an adverse rul*598ing on demurrer by the chancery court of Jefferson county, should be affirmed, that when affirmed the cause should be dismissed by the chancery court, and that such dismissal should have the effect of a final adjudication of said cause. This cause had been the subject of prolonged litigation. The appellee’s services in that litigation are the basis of his claim for remuneration asserted in the present bill. In the fourth paragraph of the agreement of compromise the “parties of the second part” — Hartón being .designated as the “party of the first part” — agreed “to convey or cause to be conveyed unto the said H. M. Hartón, or, if he desires, unto the Windsor Realty & Trust Company,” a corporation of which Hartón was and is the president, certain real estate therein described. This engagement to convey was effected by deeds to the Windsor Realty & Trust Company. It is this real estate, with an exception noted in the bill, upon which appellee would have a lien for his remuneration declared, or upon which, in the hands of the company, he would have declared and enforced a trust for his remuneration. Knowledge of appellee’s right to compensation for his services and of the fact that the Windsor Realty & Trust Company, through its president, knew of the refusal of Hartón to compensate appellee for his professional services may, for the occasion, be assumed to be sufficiently averred in the bill.

(1) The conveyance to the Windsor Realty & Trust Company of the realty described in the agreement of compromise was obviously in accord with the provisions of the agreement therein set forth, an agreement the appellee himself in writing approved. No fraud upon the asserted right of the appellee could be predicated of this thus approvd act of conveyance. There is no suggestion of anything that should or would avoid the agreement of compromise, so approved by the appellee. The bill’s theory consists alone with the complete validity of the agreement of compromise. If the appellee had desired to guard his conceived right in the premises, he should have manifested his purpose in season before expressly approving in advance the conveyance of the property to either Hartón or to the company. Presumptively, at least, the conveyance to the company was in accordance with Harton’s desire, as stipulated for in the agreement of compromise.

*599(2) It is manifest that appellee neither had nor has any contractual lien upon the real estate described in the agreement of compromise for his remuneration for professional services rendered by him in the cause mentioned by him in his bill. Neither the averments of the bill nor the exhibits thereto, nor both together, import a purpose on the part of any one to create a contractual lien to assure appellee’s remuneration.

(3) While an attorney at law or solicitor in. chancery has a lien for his remuneration for professional services in that particular behalf upon a judgment or decree obtained for his client to the extent of his agreed or his reasonable compensation (Higley v. White, 102 Ala. 604, 15 South. 141), and a positive lien for his remuneration in that and other instances and circumstances described and defined in Code, § 3011, the law in this jurisdiction remains, in the respect to be stated, as it was before the enactment of the statute (Code, § 3011), viz., that an attorney or solicitor has no lien on real estate of his client for his remuneration (Higley v. White, supra; Kelly v. Horsely, 147 Ala. 508, 41 South. 902). Before the statute, an attorney’s or solicitor’s lien on a judgment or decree for money was held to be a charge upon the proceeds derived from a sale of land to satisfy that money judgment or decree. — Higley v. White, supra. No judgment or decree having been rendered in this instance, no lien of the character and effect last stated came into existence, unless it could be affirmed that the statutory lien upon suits (section 3011) extended to lands the title to which is vested or confirmed in the client, upon the consideration, in whole or in part, of a dismissal of the suit by the consent of the client and of the attorney, thereby applying the principle of Higley v.. White, supra, as last stated. Whatever may be the ultimate construction of the statute in the respect indicated, it is quite clear in this instance that the agreement of the attorney to the dismissal by his client of the suit upon which he would now rest a claim to a statutory lien effected to extinguish the basis of any statutory lien that might once have existed upon the suit.

(4) The consideration for the conveyance of the land described in the compromise agreement was named in the compromise agreement, which, as has been stated, the appellee consented to and approved. The obligation of Hartón to remunerate appellee for his professional services was not mentioned in the *600compromise agreement. In order to lay the foundation for a resulting trust, in favor of one who did not, at the time, pay all the purchase money or afford all the consideration, for a conveyance of real estate the title to which has been invested in another, it is essential that the partial payment should be of a “definite aliquot part of the consideration.” — Bibb v. Hunter, 79 Ala. 351, 361; Allen v. Caylor, 120 Ala. 251, 24 South. 312, 74 Am. St. Rep. 31; Olcott v. Bynum, 84 U. S. (17 Wall.) 44, 21 L. Ed. 570. Aside from anything else, it will be sufficient to say, in respect of the phase of the bill that would have a resulting trust in the land in question declared in favor of appellee for remuneration for his professional services, that the value of his services under his contract with Hartón is so uncertain in. amount as to forbid the creation of a resulting trust to his advantage. It does not appear from the bill that the value of his services, in any sense, was an aliquot part of the consideration inducing the conveyance of land by the parties of the second part to the compromise agreement.

(5) Since a constructive trust is ever the result of either actual or constructive fraud (3 Pom. § 1044; Butts v. Cooper, 152 Ala. 375, 385, 44 South. 616), it is clear that the bill under consideration does not state a case wherefrom it could be concluded that a constructive trust in favor of the appellee came into existence at any time. There is in the bill no charge of actual fraud. Indeed, the approval of the agreement of compromise by the appellee negatives any notion of an imposition upon his rights as a result of the conveyance of the property to the Windsor Realty & Trust Company. The doing of that which one consents, without fraudulent inducement, may be done, cannot be pronounced a fraud upon his rights. The decree of the chancellor overruling the demurrer is laid in error. The bill is without equity. The decree is reversed, and the cause is remanded.

Reversed and remanded.

Anderson, C. J., and Sayre and Gardner, JJ., concur.