Mcgill v. Cockrell

• Decision Date: 07 April 1921
• Citation: 81 Fla. 463,88 So. 268
• Parties: McGILL et al. v. COCKRELL et al.
• Court: Florida Supreme Court

88 So. 268

81 Fla. 463

McGILL et al. v. COCKRELL et al.

Florida Supreme Court

April 7, 1921

Suit by A. W. Cockrell, Jr., and another, as late partners under the name of Cockrell & Cockrell, against Rosa Chappelle McGill and husband. From an order overruling a demurrer to the complaint, defendants appeal.

Reversed with directions to dismiss.

Syllabus by the Court

SYLLABUS

Unmarried woman's contract employing attorneys not annulled by marriage before litigation completed. The contract of an unmarried woman, whereby she employs attorneys at law to conduct specific litigation involving her property, and whereby she agrees to pay a reasonable compensation for such services, is not annulled by her marriage before the litigation is completed or the services performed.

Married woman may be sued for breach of antenuptial contract by joining husband. A married woman may be sued at law for breach of her antenuptial contract by joining her husband as defendant.

Statute held not to create lien on married woman's separate property to secure antenuptial creditors. Section 2591, General Statutes 1906, providing that the husband shall not be liable to pay the debts of the wife contracted before marriage, but that the property of the wife shall be subject to such debts, does not create a lien upon the separate property of the married woman to secure her antenuptial creditors whose claims are unliquidated and not reduced to judgment.

Woman's contract not annulled by marriage. The antenuptial contract of a married woman is not annulled nor rendered unenforceable by her marriage. Upon the obligation created by contract an action may be brought for a breach of it by her by joining her husband as a defendant, and the judgment, if any is obtained, must be satisfied out of her property.

Appeal from Circuit Court, Duval County; Daniel A Simmons, judge.

COUNSEL

John T G. Crawford, of Jacksonville, for appellants.

Knight & Adair, of Jacksonville, for appellees.

OPINION

ELLIS J.

This is an appeal from an order overruling a demurrer to an amended bill of complaint, in which the complainants seek to subject the separate property of a married woman to the payment of a sum of money alleged to be due as the reasonable compensation for professional services rendered to her partly during her widowhood and partly after her remarriage. It is prayed that the 'defendant or defendants' be decreed to be indebted to complainants, ascertain in what sum, and enforce the payment thereof out of the income and profits of the real estate described and alleged to be the property of the married woman, or that the property, both real and personal, be sold to pay the sum ascertained to be due with interest and costs; that the status of the title, possession, and tenancy of the property and the claim of third persons be ascertained, a receiver appointed, and in the event of a sale of the property that complainants may have the right to purchase, and that the defendants be restrained from selling the property or subjecting it to any charge or lien, and for general relief.

The bill alleges that Rosa Chappelle McGill, before her marriage to S.D. McGill, was the widow of Pat Chappelle, from whom she inherited and was in possession of considerable property, both real and personal, which her deceased husband had earned and accumulated in his business, which was that of proprietor of a traveling show; that shortly after his death his two brothers, Lewis W. and James E. Chappelle, began a suit in chancery against the widow, based upon the claim that as surviving partners of Pat Chappelle they were entitled to the possession of the personal property and real estate of which he died possessed, and prayed for appropriate relief; that the complainants in this suit, at the request of Rosa Chappelle, the widow, appeared in the suit in her behalf and prepared and filed her answer; that considering the value of the property involved and the services rendered, which resulted in a decree in favor of the widow, $10,000 was a reasonable compensation; that before final decree, however, and after the pleadings were filed, Rosa Chappelle, the widow, intermarried with the defendant S.D. McGill; that the complainants in this suit continued in the cause as attorneys and solicitors for Rosa, and had sole charge of the defense; that their services included representation of their client both in the circuit and Supreme Courts, to which last court they were compelled to appeal the cause because of unfavorable decree of the circuit court against their client. By amendment the bill alleges that, after Lewis W. and James E. Chappelle commenced their suit against Rosa, she, by an instrument of writing signed by her while unmarried, confirmed her retainer of the complainants, and by that instrument retained the complainants to represent her in the litigation; that she has never modified or denied her 'liability to pay' complainants 'a reasonable sum of money for their said advice and services,' but, on the contrary, during the year 1917, and at other times, the defendants acknowledged in writing the 'liability of Rosa to pay her indebtedness' to the complainants.

The demurrer to the amended bill attacks it upon the following grounds: First, it is not alleged that the amount claimed to be due to complainants from the defendant Rosa is due upon any agreement made by her in writing for the benefit of her separate property; second, complainants have an adequate remedy at law; third, the amount claimed by complainants is not due for the price of property purchased by the defendant Rosa, or for labor or materials used with her knowledge or assent in the construction of buildings or repairs or improvements upon her property, or for agricultural labor bestowed thereon with her knowledge; fourth, it affirmatively appears that no lien exists upon the property in favor of the complainants; fifth, the writing alleged to have been given by Rosa is not sufficient to meet the requirements of section 2 of article 11 of the Constitution; sixth, that the alleged agreement made by her while sole is not sufficient to meet the requirements of section 2 of article 11 of the Constitution; and, seventh, that section 2591 of the General Statutes is in conflict with article 11 of the Constitution.

Professional services were rendered by attorneys at law to a widow at her verbal and written request. She is possessed of a large estate, consisting of real and personal property inherited from her husband recently deceased. The right of the widow to the possession and enjoyment of the property was questioned by two brothers of her deceased husband, who, claiming rights to the possession of the property as surviving partners of their deceased brother, commenced litigation against the widow to obtain possession of the property. It was in this litigation that the attorneys were employed by the widow. The litigation was difficult; the rights of the parties obscured by conflicting evidence in many phases of the case. Decrees were rendered against the widow, appeals were taken, and the decrees reversed; the labor at last resulting in decrees in favor of the widow, who, during the litigation and while the services of her attorneys were being performed in her behalf, remarried. At no time before or during the employment of the attorneys was there any agreement between them and the widow, or between them and the woman and her last husband, as to the amount of compensation to be paid to the attorneys for their services in the cause.

We think that the employment of the complainants by the widow contemplated the continuation by them of their services to the end of the litigation. The contract was a valid one entered into by persons fully capable of binding themselves by agreement. The remarriage of the widow did not terminate the...