29 S.E.2d 613 | Ga. | 1944
1. An administratrix brought an equitable petition for partition against three persons, in which she asserted a tenancy in common between her intestate and the three named defendants as to certain realty; and alleged that two of the defendants were in possession of the same; that they had cut and removed valuable timber therefrom of a stated value; that they were accountable to the plaintiff for the sums so received as rents and profits; that by reason of improvements the land could not be partitioned by metes and bounds; and that it was necessary to come into a court of equity to secure from the defendants an accounting, to adjudicate the title, and to avoid a multiplicity of suits. The petition contained prayers appropriate to said allegations. Where such petition was met by an answer, which, among other things, controverted the alleged title of the plaintiff, and presented a contest of a substantial nature, and by a cross-action, in which the two defendants sought judgment against the plaintiff in her representative capacity; and where the jury found only (a) a verdict in favor of the plaintiff for a one-fourth undivided interest in the land, (b) that it was not capable of division in kind and should be sold for purposes of division, and (c) that the two defendants who filed the cross-action, plaintiffs in error herein, recover of the plaintiff from the funds in her hands to be administered a named sum of a substantial amount; and where the land was sold by a commissioner, and the fund arising from such sale was in court to be distributed, it was erroneous for the trial judge to award fees to the plaintiff's attorney out of the funds so realized.
2. The jury having found that the plaintiffs in error were entitled to recover of the administratrix the sum above referred to, it was also erroneous to provide in the decree that after deducting certain costs and expenses, one-fourth of the fund remaining should be paid to the administratrix, without providing for the payment, out of that portion of the fund which would ordinarily go to the plaintiff, of the sum which the jury found they were entitled to recover against her.
The first exception in the present record is to that portion of the decree awarding an attorney's fee to counsel for the plaintiff, to be paid out of the funds in the hands of the commissioner which arose from the sale of the realty. No question is made as to the amount of the allowance, the insistence being that it was erroneous to grant any at all.
Our law provides two methods by which a party may have partition. One is in equity, the other under a statutory provision. While in former Codes these were separated, they appear in the present Code as chapter 85-15, and are to be found in §§ 85-1501 to 85-1515, inclusive. Where one proceeds independently of equity, and the lands, being incapable of division by metes and bounds, are ordered sold and the proceeds divided, the applicants for partition are not entitled to have fees awarded to their attorneys from the funds arising from such sale. Neal v. Neal,
The rulings in Neal v. Neal and Keating v. Fuller, supra, were discussed in Werner v. Werner,
What are the general rules and general principles applicable to the allowance of counsel fees in equity cases? A person who collects funds of a debtor for the joint benefit of himself and other creditors, ought, when that fund is distributed by a court of equity, to be allowed reasonable compensation for the services of himself and his lawyers, to the extent to which those services are productive and beneficial. Price v. Cutts,
In the instant case, there was no receivership, — nothing done by the complainant to preserve, protect, or increase a common fund; nor has any fund at all been created. What happened was, that in a partition proceeding property owned jointly by the complainant and others was sold and the proceeds of the sale ordered divided. The fund that was in court for division was the result of a conversion of land into money. The character of the property was changed. It is true that the proceeding was one in equity; that the petition alleged that the defendants W. T. Nixon and Miss Maggie Nixon had sold and had cut and removed valuable saw timber from the land, and had received pay therefor of a stated value; that they were accountable to the plaintiff and all the common owners of the land for each respective share of the rents and profits received on said land, and for the value of the timber cut and removed therefrom; and that they had failed and refused to account to the plaintiff for the sums so received from the sale of the timber, although demand had been made on them for such accounting by the attorney for the plaintiff. Among the prayers were: "That plaintiff secure an accounting with said defendants, W. T. Nixon and Maggie Nixon, and recover judgment for such as it appears on account they owe her; . . that such judgment as may be recovered by plaintiff against defendants for rents and profits be declared to be a special lien against the fund going to them for their interest in said land, and that she recover the costs in this case and attorneys' fees;" and "that plaintiff have such other and further relief as seems meet and proper in the premises."
The complainant, however, took nothing herself by reason of those allegations and prayers, and added nothing to any fund in court, and certainly did not benefit the parties who except to the allowance of the attorneys' fees. On the contrary, on the trial, they obtained a judgment against the complainant from the funds in her *432 hands to be administered in the sum of $450 as principal, and the further sum of $558 as interest. The complainant did not prevail in so far as her petition asserted any equities against these two parties. She obtained in the verdict a finding in her favor of a one fourth undivided interest in the land; a finding that the land was not capable of division in kind, and that it should be sold for division; and a finding that judgment be rendered against the complainant in favor of the plaintiffs in error, as above pointed out. She obtained no equitable relief, but only that which would have been awarded her in a statutory proceeding for partition. The only equitable parts of the case were the features as to an accounting with plaintiffs in error, and a prayer for judgment in her favor against them. The only equitable relief granted was against her and in favor of the two complaining parties, that they should not be forced to pay a substantial portion of the fee of their adversary. To charge the fund arising from the sale of the land with this fee would do this effectively, although indirectly. It is adjudged that the trial court erred in so ordering payment to the attorneys.
2. Error is also assigned on that portion of the decree which directs: "That after all of the aforesaid payments, except the payment to the clerk of the costs due by the plaintiff and the costs due by the defendant, the funds remaining shall be divided into four equal parts, one-fourth thereof to be paid to the plaintiff as administratrix of Robert Nixon, after deducting therefrom the amount of costs to be paid to the clerk by her from the funds coming to her." The contention as to this assignment is, that since the finding was that the plaintiffs in error were entitled to judgment in a stated sum against the complainant administratrix, it was erroneous to decree that one-fourth should be paid to her, instead of directing that the amount of their judgment should be paid in full, or so much thereof as might remain after the payment of prior claims against the fund; there being no authority of law for the direction that said funds be paid to the complainant without payment of the amounts due the plaintiffs in error under the findings of the jury. As to this, counsel for the defendant in error reply that this court must know that there are certain expenses and costs incurred by the administratrix in the court of ordinary, which are given priority over the judgment obtained by the plaintiffs *433 in error against the administratrix, and that it was proper to turn over the fund, representing one-fourth of the net amount, to her to be disbursed under order of the court of ordinary, having due regard to the priorities fixed by the law.
In one of the prior appearances of this case, this court considered the contention of the complainant administratrix, that to allow the judgment against her "would be to grant a preference to the defendant over other creditors or persons holding claims against the estate of Robert Nixon," and met it by quoting the Code, § 81-802, which declares that, "When a defendant pleads a set-off of a larger amount than the demand of the testator or intestate, the plaintiff may reply by showing that the estate is insolvent, and that there are outstanding debts, of higher dignity than the defendant's set-off, sufficient to exhaust the assets, for the purpose of protecting the executor or administrator from an absolute judgment." Nixon v. Nixon, supra. See also authorities cited in division 3 of the opinion in that case. The judgment of the plaintiffs in error was founded on a cross-action brought by them against the administratrix. If her intestate's estate were insolvent, or if there were outstanding debts of higher dignity than that claimed by the plaintiffs in error, sufficient to exhaust the assets in her hands, she should have alleged that by way of reply. Compare Ray v. Dennis,
Judgment reversed. All the Justices concur.