Matthews v. Lytle

• Decision Date: 10 October 1929
• Docket Number: 8 Div. 104.
• Citation: 220 Ala. 78,124 So. 197
• Parties: MATTHEWS v. LYTLE ET AL.
• Court: Alabama Supreme Court

124 So. 197

220 Ala. 78

MATTHEWS v. LYTLE ET AL.

8 Div. 104.

Supreme Court of Alabama

October 10, 1929

Appeal from Circuit Court, Madison County; Paul Speake, Judge.

Bill in equity by Ben Matthews against Robert L. Lytle and others. From a decree confirming report of the register on allowance of solicitors' fees, complainant appeals. Corrected and affirmed.

Cooper & Cooper, of Huntsville, for appellant.

Lanier & Pride and Watts & White, all of Huntsville, for appellees.

FOSTER J.

Briefly stated, the facts of this case are as follows: Appellant Matthews and appellees Lytle and Gill, together with H. D Westmoreland, deceased, owned a valuable tract of land near Huntsville, suitable for development into desirable building lots, as a suburban subdivision. The owners took steps to develop it as a subdivision, and had a plat made by one Kessler. This was never recorded nor adopted as a survey. Westmoreland died, leaving his property in trust with the Birmingham Trust & Savings Company, as trustee, and the remaining three owners purchased his interest from the trustee. Appellant filed a bill to partition the property seeking to have it divided with respect to the Kessler map. Birmingham Trust & Savings Company, as trustee, was made a party, due to the opinion of complainant's counsel that the deed it had executed was not sufficient.

Appellees admitted the right to partition in answers filed by their counsel. Each respectively insisted that it was impracticable to partition by the Kessler map. Thereupon appellant amended the bill abandoning the Kessler map, and merely sought partition. But, having doubt as to the sufficiency of the deed of the Birmingham Trust & Savings Company, it was retained as a party. On demurrer to the bill, assigning as ground that it showed the deed sufficient and the trust company an unnecessary party, the court so decreed.

After considerable negotiation, an agreement was reached and signed by the parties pursuant to a plan suggested by counsel for appellees, providing a method of dividing the property by lot, to be effected by an exchange of deeds, containing stipulated building restrictions. The court entered a decree accordingly, and it was carried into effect. The agreement reserved for determination by the court the amount of counsel fees for appellant, and what, if any, fee should be allowed counsel for appellees. The property was worth approximately $40,000 to $75,000 or more, as shown by the evidence. After taking testimony, the register fixed a fee for appellant's counsel at $1,000, and found that each of the counsel for appellees had rendered services for the common benefit of the estate to the amount of $1,000, and fixed that amount for each of them. The court, on exceptions, confirmed the report.

Appellant claims that the entire fee should be awarded his counsel, and appellees claim that it was properly divided among the three in equal parts.

The question is admittedly controlled by a proper application of sections 6261 and 9319, Code, given effect by the agreement of parties. We think that both sections apply equally to the probate and chancery court, and in suits for partition in kind as well as in sales for division of real and personal property. Owens v. Bolt, 218 Ala. 344, 118 So. 590; Dent v. Foy, 214 Ala. 243, 107 So. 210, 217.

Such fees to be taxed against the common fund or property must be such as were rendered for the common benefit of all the parties as a whole. And therefore fees are not allowed for services of counsel contesting separate adverse claims of the parties. Wilks v. Wilks, 176 Ala. 151, 57 So. 776; Bidwell v. Johnson, 191 Ala. 195, 67 So. 985; Blount County Bank v. Kay, 209 Ala. 74, 95 So. 297; Dent v. Foy, supra; Brake v. Graham, 214 Ala. 10, 106 So. 188; Moody v. Moody, 216 Ala. 156, 112 So. 752; Owens v. Bolt, supra; De Ramus v. De Ramus, 205 Ala. 219, 87 So. 354.

This is true whether the services of counsel were rendered at the instance of the complainant or the respondents, or any one of them.

To permit counsel for respondent to have a fee out of the estate, he must have been employed to render and did perform some service for the common benefit of all, which in due course of the proceeding other counsel had not been employed to render, or had unduly failed to perform, unless in the discretion of the court it appears that a case is presented in which more than one counsel should be employed for the common benefit. Under the statute, this is largely controlled by the discretion of the court, subject to proper review. This is "an advised, just, judicial and revisable discretion in the light of the whole record." Dent v. Foy, supra; Snead v. Lee, 218 Ala. 44, 117 So. 469.

Services for the common good are held to include the following "The preliminary investigation of the title, the preparation of the bill, attending to the issuing of subp nas, the preparation and entering of decrees, etc." Robinson v. Robinson, 24 R.I. 222, 52 A. 992, 993. Again it is said: "Plaintiff's attorneys may have rendered some services in examining the title and preparing such papers as would have been essential to an accurate division of the lands in a friendly suit. Such services benefited the defendant owners as well as the plaintiff, and they may justly be asked to contribute toward paying for them." Liles v. Liles, 116 Mo.App. 413, 429, 91 S.W. 983, 988. For the negotiation and preparation of a compromise agreement which resulted in benefit to the estate, a fee is properly chargeable. Dent v. Foy, supra. It includes services necessary to keep the bill in court, involving any nature of attack presented to defeat it, and which results in retaining the bill, but not including a controversy as to the respective...