Boyd v. Lee

• Decision Date: 29 March 1892
• Parties: BOYD v. LEE et al.
• Court: South Carolina Supreme Court

15 S.E. 332

36 S.C. 19

BOYD v. LEE et al.

Supreme Court of South Carolina

March 29, 1892

Appeal of GRAHAM.

Appeal from common pleas circuit court of Lexington county; HUDSON Judge.

Action by E. E. Boyd, afterwards E. E. Fort, administratrix of Hugh L. Boyd, deceased, against Mary L. Lee, executrix of John W Lee, the elder, deceased, and others, to foreclose a mortgage. To a judgment on a reference ordered therein, as to what agreement existed between Fort and G. T. Graham, her attorney in the cause, up to date of order of reference, as to certain fees and compensation for his services therein Graham appeals. Affirmed.

Abney & Thomas, for appellant.

Melton & Melton, for respondents.

POPE J.

We will adopt in a large measure the statement of the facts of this cause as embodied in argument of Messrs. Abney & Thomas appellant's attorneys. John W. Lee, on the 18th day of February, 1853, executed and delivered to Hugh L. Boyd a mortgage on a certain tract of land in Lexington county to secure a sealed note dated 31st January, 1853, for $1,700. It appears that the wife of John W. Lee did not renounce her dower on this mortgage. Lee died in 1864, leaving as his heirs and distributes his widow, Mary L., and his three grandchildren, Eugene G., John W., and Joseph E. Lee. John W Lee subsequently died an infant and unmarried, leaving his mother, Mary E., and his two brothers, his heirs. John W. Lee, the elder, died testate, and his widow, Mary L. Lee, became executrix of the will. Hugh L. Boyd died intestate, and his widow, E. E. Boyd, was appointed and qualified as administratrix of his estate. Some time in the year 1869 Mrs. Boyd, as administratrix, filed her bill for the foreclosure of said mortgage in the court of equity for Lexington county against Mrs. Lee as executrix, and the other Lees mentioned above, asking for a sale of the mortgaged land, and the application of the proceeds of sale to the payment of her debt. The executrix of Lee answered, claiming that she, as widow of John W. Lee, deceased, was entitled to dower in said land, and asked that the same should be admeasured to her before the decree for foreclosure should be passed. She also claimed homestead in the mortgaged premises, and alleged her willingness to account as executrix for the assets of her testator's estate. The other defendants made formal answer. Such proceedings were had under this bill that the claim of homestead was denied, but the executrix had admeasured to her 117 acres of land as her dower, and she was placed in possession thereof. The plaintiff had an order that the amount reported as due upon her note and mortgage be confirmed. Judgment was rendered on 26th May, 1871, ordering mortgage held by plaintiff foreclosed, and lands, other than dower lands, sold to pay mortgage debt. In case there should be a deficiency in the proceeds of sale to pay plaintiff's debt, the plaintiff should have judgment for such deficiency. No papers or records show anything being done subsequent to 26th May, 1871, until 1877, when there seems to have been an order dismissing some motion to docket the cause. Mrs. Mary L. Lee died on the 2d April, 1888. On May 2, 1888, Mrs. E. E. Fort (formerly Mrs. E. E. Boyd) wrote Mr. G. T. Graham, an attorney practicing his profession at Lexington, informing him of Mrs. Lee's death, and requesting him to examine the records, and tell her what charge he would make to take the necessary proceedings in law to sell the 117 acres assigned to Mrs. Lee as dower, the fee to be paid out of the proceeds of sale. In Mr. Graham's reply, on the next day, he stated that he had examined the record, what he found, what he thought necessary to be done, and for such services he would charge $50, to be paid out of the land sale, as Mrs. Fort had suggested. On the 11th May, Mrs. Fort, in acknowledging Mr. Graham's letter, requested him to take the steps necessary to have the land sold, and used these words: "When the money is made, I will collect in person or by order, and pay you fifty dollars out of it, as a fee for your services." Mr. Graham proceeded with his work until the spring of 1889, at which time he seemed to realize that $50 was not adequate compensation. He visited Mrs. Fort; conferred with Andrew Lee, her brother. This difference of opinion as to fee was discussed. He alleges an agreement to increase the compensation. Both Mrs. Fort and Mr. Lee deny this. The lands were sold; bid off by Mr. Graham. He failed to comply. They were resold, not at his risk, at a loss of more than $300 of his bid. Mrs. Fort notified him that she no longer needed his services, having remained other counsel. In September, 1889, Judge NORTON passed the following order in the cause: "It appearing to me, from statement of counsel, that matters of disagreement have lately arisen between Mrs. E. E. Fort, the petitioner herein, and her attorney, G. T. Graham, Esq., and that the said Mrs. Fort had notified Mr. Graham that she does not desire him to act longer as her attorney; and it further appearing from such statements that Mr. Graham claims an interest in whatever amount may be recovered or received by the said Mrs. Fort under this proceeding, and for compensation of services rendered, or to be rendered, her, as her attorney in this behalf; and the said Graham expressing a willingness to retire from this case, provided his rights are reserved as to any claim or lien he may have in the moneys to be received by Mrs. Fort by reason of this proceeding, the same as if he were still her attorney and rendering the services agreed on; and it further appearing that the said Mrs. Fort has employed Messrs. Melton and Melton as her attorneys to act in the place and stead of the said G. T. Graham, Esq.,--it is ordered that the names of Melton and Melton be entered on the dockets of this court as appearing for Mrs. E. E. Fort, in the place and stead of G. T. Graham, Esq., without any prejudice to the right or claim of Mr. Graham to any interest he may have in whatever amount of money she may receive from the estate of John W. Lee, deceased, by reason of this proceeding. And it is further ordered that it be referred to R. W. Shand, Esq., to ascertain and report to this court, in order that it may determine the rights of the parties, what was the agreement between Mrs. E. E. Fort and G. T. Graham, Esq., as to the fee or compensation for his services as her attorney in and about the above-stated proceeding." Messrs. Melton & Melton declined to attend the reference before Mr. Shand, upon the ground that they had nothing to do with the matter before the referee. R. W. Shand, as said referee, submitted his report to the court on this matter, on the 9th February, 1891, and it came on to be heard before Judge HUDSON on the 27th of February, 1891. By the report of...