In re Sylvester's Estate
| Decision Date | 13 March 1923 |
| Docket Number | 35242 |
| Citation | 192 N.W. 442,195 Iowa 1329 |
| Parties | C. J. ROTEN, Administrator, Appellant, v. TESDELL & MACKAMAN, Appellees. IN RE ESTATE OF MATTIE P. SYLVESTER |
| Court | Iowa Supreme Court |
REHEARING DENIED JUNE 22, 1923.
Appeal from Polk District Court.--JAMES C. HUME, Judge.
A summary proceeding on a motion under Code Section 3826, to require defendants, as attorneys for the plaintiff's intestate, to account for and repay to the plaintiff fees obtained by said defendants in a divorce proceeding in which they were attorneys for plaintiff's intestate. The trial court denied plaintiff the relief sought.--Reversed and remanded.
Reversed and remanded.
E. D Samson and F. H. Noble, for appellant.
Stipp Perry, Bannister & Starzinger, for appellees.
On April 12, 1915, the appellant's intestate married one George E. Campbell. They lived together as husband and wife until May 12, 1918, when she left him at Council Bluffs, and proceeded to Gilbert, Iowa, where a sister resided. She was the owner in her own right of property valued at from $ 50,000 to $ 60,000. Her husband had no property at the time of the marriage, and accumulated nothing thereafter. It appears that a greater part of the time after the marriage was spent by the parties in traveling to various parts of the country. Among the property owned by the appellant's intestate at the time of her marriage was a farm in Jasper County, which was sold, and a portion of the proceeds invested in land in Harrison County, the title to which was taken in the names of the husband and wife, as tenants in common. After arriving at the home of her sister, in May, 1918, appellant's intestate decided that she would apply for a divorce from her husband. In company with her sister, she consulted the local banker at the town of Gilbert, who was the cousin of the appellee Tesdell. The banker suggested to her and her sister that she consult Tesdell, and recommended him as a man worthy of confidence, and one who would treat her right. At her request, the banker communicated with Tesdell, who came to Gilbert to see her on May 18th. At that time, the talk appears to have been quite general, and Tesdell returned home, and was later summoned to Gilbert for further conference with appellant's intestate on May 22d, at which time a contract was entered into in writing between the parties, as follows:
After said contract had been entered into, the appellees instituted an action for divorce, and filed a petition in the district court of Story County, and procured writs of attachment to issue to Harrison County and Pottawattamie County, and certain property was attached and some garnishments were had. One of the appellees spent a few days at Council Bluffs, looking up evidence in the divorce case, and it was anticipated that it would be necessary for one of the appellees to go to foreign states to secure evidence; but this was not done. Shortly after the filing of the petition for divorce, the attorney for Campbell called upon the appellees in regard to a settlement of the divorce proceedings. It was finally arranged that the attorneys should meet, on July 11th, at Grinnell, to which place appellant's intestate and her sister had removed. Negotiations were had between the attorneys for the parties at said time, with respect to a settlement of the property rights of the parties. The attorney for Campbell at first insisted that his client should receive $ 5,000 of the proceeds of a contract for the sale of the land owned in common, but later this proposition was modified, and a basis of settlement of property rights was finally agreed upon without the payment of any sum to Campbell, by which he consented to pay $ 500 on appellees' attorney fees. Campbell's attorney expressed a desire to have the matter disposed of without further delay, and it was suggested that the case be transferred to Tama County for hearing, where court was at that time in session; and the attorney for Campbell suggested that he would testify as a witness in said cause, to the effect that his client had admitted to him that he had been guilty of adulterous relations with another woman, who had been the traveling companion of the parties. This arrangement was carried out. Shortly thereafter, an order transferring the cause and a transcript of the files were procured. The defendant did not appear in said action. Formal proof of the matters alleged in the petition was had, and a decree prepared and signed. At the time of the conference at Grinnell, the appellee Tesdell secured the signature of appellant's intestate to a written instrument which he prepared, fixing the amount of the fee, and this was paid to the appellees in 1918, shortly after the divorce was granted. Appellant's intestate died in March, 1921, and this action was commenced by her administrator on September 20, 1921.
I. The first question for our consideration is whether or not the contract between the decedent and appellees was illegal and void.
It was not illegal merely because it provided for a contingent fee to be paid appellees for their services. There was no suggestion of maintenance in the contract. It was not champertous. It expressly negatived the idea that appellees were to pay any portion of the court costs. Ordinarily, a contract between attorney and client, providing for the payment of a fee for legal services contingent upon the results obtained by the attorney, without more, is not an illegal contract, but one that is enforceable. McDonald v. Chicago & N.W. R. Co., 29 Iowa 170; Winslow v. Central Iowa R. Co., 71 Iowa 197, 32 N.W. 330; Dunham v. Bentley, 103 Iowa 136, 72 N.W. 437; Rickel, Crocker & Christy v. Chicago, R. I. & P. R. Co., 112 Iowa 148, 83 N.W. 957; Graham v. Dubuque Spec. Mach. Works, 138 Iowa 456, 114 N.W. 619; Clancy v. Kelly, 182 Iowa 1207, 166 N.W. 583.
II. But the contract in the instant case involved more than the mere question of the payment of a contingent fee to appellees for legal services. It involved an agreement to pay an attorney's fee contingent upon the procurement of a divorce and the adjustment of property rights in connection therewith. Such a contract, having for its object such a purpose, is one that involves a matter of public policy. The proper maintenance of the marriage relation is a matter of public concern.
In general, a contract the object of which is the procurement of a divorce is against public policy and void. Barngrover v. Pettigrew, 128 Iowa 533, 104 N.W. 904; Pereira v. Pereira, 156 Cal. 1 (103 P. 488); Hamilton v. Hamilton, 89 Ill. 349; Jordan v. Westerman, 62 Mich. 170 (28 N.W. 826); Wilde v. Wilde, 37 Neb. 891 (56 N.W. 724); James v. Steere, 16 R.I. 367 (16 A. 143).
A contract between an attorney and client providing for the payment of a fee to the attorney contingent upon the procurement of a divorce for the client is against public policy, and illegal and void. Such a situation involves the personal interest of the attorney in preventing a reconciliation between the parties, a thing which the law favors and public policy encourages. Newman v. Freitas, 129 Cal. 283, 61 P. 907 (50 L. R. A. 548, 551). See, also, Muckenburg v. Holler, 29 Ind. 139; Speck v. Dausman, 7 Mo.App. 165.
The sanctity of the marriage relation, the welfare of children, the good order of society, the regard for virtue, all of which the law seeks to foster and protect, are ample reasons why such contracts should be held to be contrary to public policy.
We therefore hold that the contract in controversy in this suit was, upon its face, against public policy, and unenforceable at the instance of either party.
III. The contract in the instant case is not, however, an executory contract. Neither party thereto is seeking to enforce the same against the other. It has been fully and completely performed by both parties, and such performance acquiesced in for a period of three years prior to the commencement of this action.
The appellant herein, as administrator of the estate of the decedent, can have no greater rights in the premises than could the decedent, if living. We then meet the inquiry: Can one party to an illegal contract that has been fully executed, recover from the other party money that has been paid such party under said contract and in fulfillment thereof?
Appellees invoke the maxim, "in pari delicto potior est conditio defendentis" ("when both parties are equally in fault, the condition of the defendant is preferred"), or, as it is...
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