Emery v. Goff, Case Number: 30509

• Decision Date: 25 March 1947
• Docket Number: Case Number: 30509
• Citation: 180 P.2d 175,198 Okla. 534,1947 OK 93
• Parties: EMERY v. GOFF
• Court: Oklahoma Supreme Court

1947 OK 93

180 P.2d 175

198 Okla. 534

EMERY v. GOFF

Case Number: 30509

Supreme Court of Oklahoma

Decided: March 25, 1947

Syllabus

¶0 1. GUARDIAN AND WARD - Validity of contingent fee contract of guardian with attorney for recovery of lands for ward's estate - Contract effective as equitable conditional conveyance.

Where the guardian of a minor enters into a contingent fee contract with an attorney to handle litigation for the recovery of lands for the ward's estate whereby said attorney is to receive a specified undivided interest in said lands, and the contract is duly approved by the county court as necessary for the proper protection of the ward's estate, such contract is valid and binding upon the ward, and constitutes an equitable conditional conveyance of the interest to the attorney, to take effect on successful completion of the legal services.

2. SAME - Partition of land owned by minor and another - Party electing to purchase minor's interest required to pay cash.

Where E. and G., a minor, each owns an undivided one-half interest in certain real estate and E. files partition suit and in said cause elects to purchase the minor's interest the consideration to be paid for the minor's interest must be in cash, and if the purchase is not for such a cash consideration, the deed is void on the face of the record and may be set aside by G.

Appeal from District Court, Okmulgee County; C.O. Beaver, Judge.

Action by Ellis Clifford Goff against A.L. Emery and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded with directions.

A.L. Emery, of Okmulgee, in pro. per. and for plaintiff in error Frances B. Emery.

James M. Hays and Richard A. Hays, both of Okmulgee, for defendant in error.

PER CURIAM.

¶1 This action was instituted in the district court of Okmulgee county by Ellis Clifford Goff against A.L. Emery and Frances B. Emery to recover a quarter section of land and to quiet title, and for rents and profits. On trial to the court judgment was rendered for plaintiff on both causes, and defendants appeal.

¶2 The land in question originally belonged to Misey Goff, mother of the plaintiff, who occupied the same as a homestead with her husband, Wesley Goff, and the plaintiff.

¶3 Misey Goff executed and delivered a deed to the land to one who subsequently conveyed to others. She then instituted an action to cancel the conveyance for violation of an alleged trust. While the action was pending, Misey Goff died, leaving her husband and the plaintiff as her only heirs. Administrator of the mother's estate was duly appointed, but nothing was done to revive the action.

¶4 Subsequently, a guardian was appointed for plaintiff herein, who was then a minor. The guardian, pursuant to the direction of the county court, and by its written approval, entered into a contract with the defendant A.L. Emery, a practicing attorney, whereby the guardian employed Emery to enter the aforesaid action and to prosecute by cross-petition the claim of the ward to said land as the sole and only heir at law of Misey Goff. The pertinent portion of said contract, after identifying the action then pending, reads as follows:

"The second party is an attorney at law duly licensed to practice in the State of Oklahoma. The first party employs second party, as such attorney at law, to represent first party in the prosecution of said action. If second party is successful in cancelling the said deeds and otherwise clearing the title to the said land in said first party, or Ellis Clifford Goff, the first party agrees to execute and deliver to second party a good and sufficient warranty deed for an undivided one-half interest in all, or any part of said land, recovered in said action or actions which might be necessary to institute. Or, if for the best interest of both parties, the county judge may set aside half of said land for second party and the said first party agrees to execute and deliver to second party a good and sufficient deed for said half of said land so set aside by said county judge; the said county judge to be the judge of what is for the best interests of the parties. First party agrees to deposit from time to time such sums for costs as required by the court clerk and to pay also the necessary expenses in the prosecution of said action, or actions."

¶5 The contract was approved by the county judge in due form.

¶6 Emery performed his part of the contract, and recovered the land for Ellis Clifford Goff, subject, however, to the contract between his guardian and Emery.

¶7 Prior to said contract the administration proceedings in the matter of the mother's estate were concluded and the plaintiff herein determined to be the only heir of Misey Goff, deceased.

¶8 Thereafter, Emery filed his motion or petition in county court seeking an order directing the guardian to execute a guardian's deed to him in accordance with the above contract. The order was entered as prayed, and the guardian, pursuant to the order, executed and delivered to Emery a deed conveying to him an undivided one-half interest in the land. It may be conceded that this deed was ineffective.

¶9 Thereafter, plaintiff's father, Wesley Goff, commenced an action in district court against the plaintiff and Emery to recover an undivided one-half interest in the land as the husband of Misey Goff. Wesley Goff was unsuccessful in that action (Goff v. Goff, 124 Okla. 63, 253 P. 1014). Among other questions decided therein, is was determined that the homestead character of the land in question was determined by the county court's decree of distribution.

¶10 In December, 1931, approximately ten years subsequent to the execution of the guardian's deed, Emery commenced an action in district court against the present plaintiff, then still a minor, to partition the land pursuant to 12 O. S. 1941 §§ 1501-1516. Emery alleged that he and the minor Goff were tenants in common, each owning an undivided one-half interest in the land. He based his own title on the contract and guardian's deed aforesaid. He also sought judgment against Goff, plaintiff herein, for $924.92, representing taxes paid by Emery on behalf of the minor during the intervening ten years of cotenancy, and other expenses laid out in Goff's behalf. The sum so claimed had previously been allowed by the county court as representing just claims against young Goff's estate, and the claims bore the written approval of said court. No attorney's fees were included in said claim.

¶11 In the partition suit the plaintiff herein was represented a duly appointed guardian ad litem. In the answer the validity of the guardian's deed was attacked on the ground that the same was "void and of no effect, for the reason that the same was made and obtained from the guardian under a void order of the county court of Okmulgee county, Oklahoma, and that said court was without power or jurisdiction to make such order." It was also charged that the land was the homestead of the minor and not subject to partition. The validity of the aforesaid claims of Emery was also attacked.

¶12 After a trial of the issues as authorized by sections 1504, 1505, supra, the court held the deed valid and rendered judgment for Emery for the $924.92 aforesaid, and decreed each party to be the owner of an undivided one-half interest in the land, and ordered partition (sec. 1505). The commissioners appointed by the court (sec. 1506) found that the land was not suitable to partition in kind and appraised the same at $1,600.

¶13 Emery elected to purchase the land at the appraised value (sec. 1512, supra) and asked that the price thereof be credited on the money judgment mentioned above. The court so ordered; and in due course sheriff's deed was executed and delivered to Emery, who, by order of the court, was placed in possession of all the land. No appeal was taken.

¶14 The petition, with its amendments, in the instant case charges that the attorney's contract aforesaid and the guardian's deed were executed without authority of law, and beyond the jurisdiction of the county court, and void; that the judgment rendered in the partition proceedings sustaining said contract and deed was void and beyond the power and jurisdiction of the district court, and was a fraud against the rights of the plaintiff.

¶15 It is further charged that no part of the claim of defendant Emery for $924.92, for which he sought judgment in the partition action, was a proper charge against plaintiff's estate, and that the approval thereof by the county court was procured by fraud, and was void as to plaintiff. It is alleged that as a result the judgment of the district court based on said claim was void.

¶16 Defendants met the issue and pleaded the judgment in partition and the orders of the county court as res judicata of all issues.

¶17 Plaintiff commenced the present action within the year after reaching his majority and asserts that the same is a direct attack upon the judgment and orders aforesaid, and was instituted pursuant to his right to show cause against the same within one year after majority, as provided by 12 O. S. 1941 §§ 700, 1031 (8). It is insisted that the judgment and orders are void on the face of the record, and were fraudulent, and that the present action is therefore a direct attack thereon.

¶18 The present action constitutes a collateral proceeding against the district court judgment. But, so far as it attacks the judgment as void on the face of the record or void for fraud, it is a direct attack thereon in equity.

¶19 A judgment void on its face may be set aside any time, and a judgment void for fraud (sec. 1031 (4)) must be attacked within two years from its rendition, or, if defendant is an infant, he may attack a judgment for errors therein within 12 months after arriving at full age (sec. 1031 (8)).

¶20 Plaintiff says the petition filed by Emery in the partition proceedings failed to state a cause of action in that the contingent fee contract and the...