Askey v. Williams

• Decision Date: 11 June 1889
• Citation: 11 S.W. 1101
• Court: Texas Supreme Court
• Parties: ASKEY <I>et al.</I> <I>v.</I> WILLIAMS.

11 S.W. 1101

ASKEY et al.

v. WILLIAMS.

Supreme Court of Texas.

June 11, 1889.

Appeal from district court, Wilson county.

B. F. Ballard, for appellants. A. J. Williams, pro se.

GAINES, J.

This suit was brought by appellee against appellants, to establish his title to an undivided one-third interest in a tract of land described in his petition, and for partition. Appellants, Mrs. Askey and Mrs. McAdoo, were alleged each to own an undivided one-third interest in the land, and their husbands were made parties defendant. Mrs. Bell Ware was also made a party defendant; the petition alleging that she had once claimed an interest in the land, and had never formally relinquished her claim. The defendants denied the allegations of the petition, and pleaded specially their title. They averred that the land belonged to appellant McAdoo and his wife, Mrs. McAdoo, and to Mrs. Askey and Mrs. Ware, who are alleged to be the heirs of Oliver Lightfoot and Mrs. E. Lightfoot. The plaintiff filed a supplemental petition, which will be considered in another part of this opinion. There was a judgment decreeing that plaintiff and defendants Mrs. Askey and Mrs. McAdoo were the owners each of an undivided one-third interest in the land, and ordering that the same should be partitioned among them in accordance with their respective interests.

Upon the trial it was admitted that the title to the land in controversy was formerly in one Oliver Lightfoot, and that it descended to J. L. Lightfoot, Mrs. M. M. Askey, and Mrs. Nettie A. McAdoo in equal portions, as his heirs. It appears that J. L. Lightfoot was a minor when he inherited his interest in the property, and that he did not attain his majority until the latter part of the year 1885. In December, 1883, having been indicted for theft of cattle, he employed plaintiff, who was an attorney at law, to defend him in the prosecution, and agreed to pay him $250 for his services. To secure the sum so promised, he executed to plaintiff his promissory note, due March 1, 1884, and also a mortgage upon his interest in the land in controversy, which empowered plaintiff to make sale of his interest in default of the payment of the note. The plaintiff transferred the note collaterally to secure a debt he owed one Cummings. The note not having been paid at maturity, at the instance of Cummings, he exposed the land for sale in accordance with the terms of the mortgage, on 24th day of May, 1884, and Cummings became the purchaser. Plaintiff having paid Cummings, the latter reconveyed the land to him. After the sale under the power in the mortgage, and after J. L. Lightfoot attained his majority, he sold and conveyed his interest in the land to appellant J. D. McAdoo.

The contracts of an infant for necessaries are neither void nor voidable, and we are of opinion that the services of an attorney should be held necessary to an infant, where he is charged by an indictment with crime. His life or his liberty and reputation are at stake, and it would be unreasonable to deny him the power to secure the means of defending himself. He may contract for food and raiment suitable to his condition in life, though they be such as are not demanded by his absolute wants, and it is not to be questioned that the immunity from punishment and disgrace is a matter of far more importance to his welfare. It has accordingly been held that reasonable attorney's fees in defense of a criminal action brought against an infant are necessaries. Barker v. Hibbard, 54 N. H. 539. See, also, Munson v. Washband, 31 Conn. 303. It follows that by his contract Lightfoot was bound to pay plaintiff the reasonable value of his services.

We come, then, to the question, are the note and mortgage given by him to secure the fee either void or voidable? It is sometimes said that if an infant gave his negotiable promissory note or his bond under seal, even for necessaries, the express contract so made is void. The reason for the doctrine is that no inquiry can be made into the consideration of such an instrument. In Parsons v. Keys, 43 Tex. 557, it is said, in...