Liles v. Liles
| Decision Date | 16 January 1906 |
| Citation | 91 S.W. 983,116 Mo.App. 413 |
| Parties | LILES, Respondent, v. LILES et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from Lincoln Circuit Court.--Hon. Houston W. Johnson, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Chas Martin for appellants.
(1) There was no contract between the plaintiff and his attorneys as to the amount of the fee, neither was there a stipulation signed and filed authorizing the court to fix the fee. Before an attorney's fee can be allowed and taxed as cost in the case it must be shown that a contract was made between the plaintiff and his attorneys fixing the amount of the fee or a stipulation signed and filed authorizing the court to fix the fee. Draper v. Draper, 29 Mo. 13; Bank v King, 73 Mo. 591; Westmoreland v. Martin, 24 S.C. 238. (2) Counsel fees are allowed in partition suits only when there is no contest, and where the service rendered by the attorney is beneficial to both plaintiff and defendant. McMullen v. Reynolds, 209 Ill. 504; Sturz v. Sturz, 131 Ill. 210; Dunn v Burshire, 175 Ill. 243; Osbum v. Eslinger, 155 Ind. 251; Stempel v. Thomas, 89 Ill. 146; Bell v. Shaffer, 154 Ind. 413-424; Duncan v. Duncan, 63 Iowa 150; Swartzel v. Rogers, 3 Kan. ; Frestee v. Gellen, 26 Ky. Law 149; Lang v. Constance, 46 S.W. 693; Counce v. Parsons Unknown, 76 Me. 448; Swett v. Bussy, 7 Mass. 506; Symonds v. Kimball, 3 Mass. 299; Reed v. Reed, 9 Mass. 372; Hanson v. Ingwaldson, 84 Minn. 346; Potts v. Gray, 60 Miss. 57; Hoffman v. Olsen, 4 So. (Miss.) 545; Appleton v. Appleton, 140 Mo. 309; Gutick v. Huntly, 144 Mo. 241; Oliver v. Lansing, 57 Neb. 352; Coles v. Coles, 13 N.J.Eq. 365; St. Clair v. Marquell (N. J.), 67 N.E. 693; Everett v. Ciaskrey, 69 N.W. 1165; Young v. Stone, 55 Ohio St. 125; Trust C. App., 108 Pa. St. 339; Johnson v. Johnson, 53 S.W. 226; Murry v. Conlon, 19 Mont. 389.
Norton, Avery & Young for respondent.
Under the statute as it now is and was at the time this suit was brought, the nearest construction we have of it by the courts is the case of Forsee v. McGuire, 109 Mo.App. 701, where Judge ELLISON construes section 4422, Revised Statutes 1899.
This appeal was taken from an order of the circuit court allowing a fee to the attorneys for the plaintiff. The proceeding is an action under the statute for the partition of land. The petition was filed December 21, 1900. In view of one point to be decided, it is necessary to state the issues made by the pleadings. The petition alleges that the plaintiff owns three-fifteenths of the land in controversy and the three defendants, David Liles, Daniel Liles and Robert W. Johnson, twelve-fifteenths, or four-fifteenths each; that the defendant, Anna J. Forgey, as the only legal heir of Nimrod Guy, deceased, holds a note secured by a deed of trust on all the land, on which note there is an unpaid balance; that the deed of trust to secure said note was executed by the plaintiff as well as by his three co-owners of the land; but the money received on the note was all paid to his co-owners, plaintiff receiving no part thereof; that when plaintiff executed the deed of trust to secure the note, his co-owners, David and Daniel Liles and Robert W. Johnson, gave the plaintiff a written contract that he should not be compelled to pay any part of the note but that the defendants, in consideration of the use of all the lands, including plaintiff's interest therein, free of rent for the five years during which the note was to run, would pay the whole amount of the note. The petition further states that the plaintiff is entitled to a portion of the rents on the land from and after March, 1898, when his mother died, but that his co-owners had enjoyed and retained the rents and profits since that date; that the lands are susceptible of division in kind. The prayer of the petition was that commissioners be appointed to divide the land between plaintiff and his co-owners, according to their respective interests, and that judgment for partition be entered; that plaintiff be allowed the amount found to be due him from his portion of the rents and profits since March, 1898, and that the balance due on the note held by Anna J. Forgey and secured by a deed of trust on all the lands, be decreed to be a lien on the portion set off to the defendants, David and Daniel Liles and Robert W. Johnson, and that if said note was not discharged by said defendants, an order be entered by the court directing Anna J. Forgey, as beneficiary in the deed of trust, to proceed, first, to foreclose against the interests of said defendants before proceeding against the part set apart to plaintiff.
The answer contains first, a general denial of every allegation of the petition. For further defense, it avers that all the lands belonged to Daniel W. Liles, deceased, the father of the plaintiff, and of the defendants Daniel W. and David Liles, and grandfather of the defendant, Robert W. Johnson, that said ancestor died October 29, 1884, intestate, leaving as his heirs the plaintiff and said last named defendants, and also two other sons, Lafayette and Arthur Liles, a daughter Susan Truelove and leaving as his widow Matilda Liles; that Arthur Liles died intestate in January, 1890, leaving as his heirs, the plaintiff and the defendants, Daniel W. and David Liles and Robert W. Johnson, and his brother, Lafayette Liles, his sister, Susan Truelove, and his mother, Matilda Liles; that Lafayette Liles died intestate in March, 1898, leaving as his heirs the plaintiff, the three defendants, who are co-owners of the lands, the children of his sisters, Susan Truelove, and his mother, Matilda Liles; that Matilda Liles died in March, 1899, leaving as her heirs, the plaintiff and the defendants, who are co-owners with him and Susan Truelove's children. The answer then avers that both Arthur and Lafayette Liles, at the time of their death, were indebted to the defendants and other persons in the sum of $ 500, which sum represented valid and subsisting debts for which the respective interests of said deceased brothers in the lands in question were liable; that their estate had never been administered and they left no other property to pay such debts; that Matilda Liles, at the time of her death, was largely indebted to defendants and other persons, to-wit: in the sum of $ 500; that she owned no other property except her interest in the lands in question and there had been no administration of her estate. The answer further states that at the death of the original ancestor, Daniel W. Liles, the lands were encumbered by mortgages and deeds of trust made by him for a large sum of money; that since his death and for the purpose of preserving the property from sale at a sacrifice, the defendants (except Anna J. Forgey) had been compelled to pay in partial discharge of said incumbrances, the sum of $ 1,263, and also had been compelled to pay as taxes against said lands the sum of $ 550; that the plaintiff has refused to pay any part of the incumbrances on the lands or the taxes; that besides the sum aforesaid, the defendants have expended in money and work on said farm, to make repairs and improvements needed to prevent the land from going to waste, the sum of $ 650. On account of the estate of Arthur, Lafayette and Matilda Liles not having been administered and the debts they owed not having been paid, it was averred that the partition suit should abate. But the answer prayed that, if the court entertained plaintiff's complaint and partitioned the land, it would decree a lien in favor of the defendants (except Anna J. Forgey) for the sums paid by them for taxes, incumbrances and repairs. A replication was filed admitting the averments of the answer in regard to the mode in which the title to the lands had vested in the plaintiff and his co-owners, but denying that either Arthur, Lafayette or Matilda Liles died owing the defendants, or any other person, any sum which was a valid lien against the lands in controversy; denying that the defendants had paid incumbrances on said lands made by Daniel W. Liles, the ancestor, in the sum of $ 1,263.00 or any other sum, or that they had been compelled to pay for taxes, $ 550.00 or any other sum for which they had not been remunerated out of the proceeds of the land, or that they had paid $ 650.00 or any other sum to preserve the lands from waste. The reply then reiterates the averments of the petition in regard to the receipt of the rents and profits of the lands by plaintiff's co-owners to the exclusion of his rights, and avers that plaintiff, in order to preserve the estate of his deceased father to the heirs and keep the same from being sold for the father's debts, paid $ 806.00 in settlement of his father's estate; that of this money, the sum of $ 640.00 was borrowed from Nimrod Guy pursuant to an agreement between plaintiff and the defendant (except Anna J. Forgey) that if plaintiff would pay the balance, and would permit said defendants to occupy the land for five years without rent, defendants would pay off and discharge the incumbrance for $ 640.00. This is the same matter averred in the petition and the relief asked regarding it is that it be decreed a first lien on defendant's interests in the lands. The replication further prayed that if the partition suit was continued or abated, the court would appoint a receiver to hold the lands and collect the rents, pending partition among the parties according to their respective interests.
The court found the interests of the several parties to be as stated in the petition; namely, that the plaintiff owned three-fifteenths and each of the defendants (except Anna J Forgey) four-fifteenths. In truth, this was conceded by all the parties. The court's...
To continue reading
Request your trial