Lay v. Lay

• Decision Date: 03 June 1918
• Docket Number: 20110
• Citation: 118 Miss. 549,79 So. 291
• Court: Mississippi Supreme Court
• Parties: LAY ET AL. v. LAY ET AL

79 So. 291

118 Miss. 549

LAY ET AL. v. LAY ET AL

No. 20110

Supreme Court of Mississippi

June 3, 1918

Division B

APPEAL from the chancery court of Scott county, HON. G. C. TANN Chancellor.

Suit by J. F. Day and others against R. C. Lay and others. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed.

Watkins & Watkins and Whitfield & Whitfield, for appellant.

W. I McKay, for appellees.

OPINION

STEVENS, J.

This appeal is prosecuted from a decree of the chancery court of Scott county awarding to the appellees two thousand two hundred forty-three dollars and twenty cents, now in the hands of R. C. Lay, as administrator de bonis non of the estate of Mrs. Nancy Lay, deceased. About the year 1870, Mrs. Nancy Lay, a resident of Scott county, departed this life leaving an unsatisfied claim against the United States government for the destruction of certain of her property by federal soldiers during the Civil War. During the life of Nancy Lay she asserted her claim against the United States government and employed one T. B. Johnson, an attorney, to represent her; but for some reason Nancy Lay declined to prosecute her claim further at her own expense and preferred to assign and did elect to assign and give her claim to her grandson, R. M. Lay, Jr., then a young man who had formerly been taken into her home as a member of her household. We shall not here state or analyze the facts in reference to this assignment. This is due to the fact that the transcript of the stenographer's notes has, by motion of the appellees, been stricken from the record, and, while there are certain depositions left in the record, it yet remains that all the facts before the chancellor are not now lawfully a part of the record, and we must look to the findings of fact and the conclusions reached by the chancellor in his final decree. The decree shows upon its face that the issues presented to the chancellor were heard upon the pleadings and upon "depositions and oral testimony," and the decree recited in part that:

"It appearing to the court that during the late Civil War there accrued to the said Nancy Lay, now deceased, a claim against the United States for the value of certain of her property taken or destroyed by the Union or Federal army; that prior to her death the said Nancy Lay assigned and transferred her said claim against the said United States to her grandson, R. M. Lay, Jr.; that after the death of said Nancy Lay, her said grandson, R. M. Lay, Jr., was appointed and qualified as the administrator of the estate of his said grandmother, the said Nancy Lay, deceased," etc.

The decree recites that a suit in the court of claims was prosecuted to a successful termination, and that the attorneys employed to do the work were King & King of Washington. The court of claims allowed and paid the sum of two thousand eight hundred four dollars. Congress, in appropriating the money to pay the judgment, provided by Act Cong. March, 4, 1915, chapter 140 section 4, 38 Stat. 996, as follows:

"That no part of the amount of any item appropriated in this bill in excess of twenty per centum thereof shall be paid or delivered to or received by any agent or agents, attorney or attorneys on account of services rendered or advances made in connection with said claim."

The written contract for the employment of King & King provided for the payment of "a fee equal to fifty per cent. of the amount which may be allowed on said claim;" but on account of said section of the act only twenty per cent. was paid direct to the attorneys, and the balance, two thousand two hundred forty-three dollars and twenty cents, was paid to the administrator de bonis non and accounted for in his final account. The final account asked the chancellor to direct how and to whom these funds should be paid. In addition to the presentation of the final account, certain heirs at law and devisees of Nancy Lay, the deceased, filed their original bill of complaint in this cause claiming the funds in question under the residuary clause of the last will and testament of Nancy Lay. The heirs of R. M. Lay, Jr., answered this bill and made their answer a cross-bill, in which they claim the funds under the gift and assignment executed by Nancy Lay to the said R. M. Lay, Jr. Without a further statement of the pleadings or the relationship of the parties, it may be stated briefly that there are two questions presented by this appeal.

First, the validity of the assignment by Nancy Lay to her grandson is attacked as being in violation of section 6383. United States Compiled Statutes, annotated, formerly Revised Statutes, section 3477, being in the following words:

"All transfers and assignments made of any claim upon the United States, or of any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders, or other authorities for receiving payment of any such claim, or of any part of share thereof, shall be absolutely null and void, unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the amount due, and the issuing of a warrant for payment, thereof. Such transfers, assignments and powers of attorney must recite the warrant for payment, and must be acknowledged by the person making them, before an officer having authority to take acknowledgments of deeds, and shall be certified by the officer; and it must appear by the certificate that the officer, at the time of the acknowledgment, read and fully explained the transfer, assignment, or warrant of attorney to the person acknowledging the same."

It is also claimed that the heirs at law of R. M. Lay, Jr., are now estopped to claim the funds because of the fact that R. M. Lay, Jr., in his lifetime prosecuted the claim against the government in the name of Mrs. Nancy Lay; that he made affidavits that Nancy Lay was the owner of the claim and represented to and contended before the court of claims that she was the unconditional owner.

The second point presented by the appeal is the validity of the claim of King & King and Judge Paul B. Johnson, son of the Mr. Johnson first employed as attorney, for a balance of thirty per cent. of the funds as attorney's fees. The contract for the employment of the attorneys was executed in writing by R. M. Lay, Jr., as the lawful administrator of Nancy Lay, and after his death the contract was renewed by R. C. Lay, as administrator de bonis non. By both of these contracts the attorneys were to receive fifty per cent. of the amount allowed and collected. It is conceded that the attorneys prosecuted the claim with diligence and ability, but recovery was denied by the learned chancellor because of the act of Congress quoted in part above. The court also held that R. M. Lay, Jr., and his heirs, were estopped to claim the funds notwithstanding the gift and assignment. So it is that the facts have been settled by the chancellor, and the questions presented to us are purely questions of law.

We shall first discuss and dispose of the question of attorney's fees. Appellants contend that section 4 of the act is unconstitutional and void, being in derogation of appellees' liberty of contract without due process of law and operating to deprive appellees of their property and the fruits of their lawful contract without due process of law. It is also contended that the attorneys, who are appellants herein, have an equitable lien upon the funds produced by their professional labors and by the expenditure of their time and money. It is nowhere shown...