Quinton v. Neville

• Decision Date: 04 March 1907
• Docket Number: 2,222.
• Citation: 152 F. 879
• Parties: QUINTON et al. v. NEVILLE et al.
• Court: U.S. Court of Appeals — Eighth Circuit

152 F. 879

QUINTON et al. v. NEVILLE et al.

No. 2,222.

United States Court of Appeals, Eighth Circuit.

March 4, 1907

In March, 1892, the appellee Neville, as administrator with the will annexed of the estate of Morrell C. Keith, deceased, and Morrell Keith Neville, the only heir at law, exhibited their bill to the Circuit Court of the District of Kansas against Eugene S. Quinton and Abram Bergen, and others setting out the ownership by the testator in his lifetime of land situated in Shawnee county, Kan., the complainant's relation to him as above stated, and the following facts That the will had been duly probated in the county court of Lincoln county, Neb., where the testator resided at the time of his death; that Neville had 'lately filed in the probate court of Shawnee county an authenticated copy of his appointment as administrator with the will annexed and caused the same to be recorded therein'; that debts amounting to $55,000 duly allowed against the estate remained unpaid; that the will empowered the executor as trustee and his successor Neville, as administrator c.t.a., to sell the real estate of the testator for the purpose of settling the estate, and expressed a desire that such property as was located outside the state of Nebraska should be first sold for that purpose that it was advisable in the opinion of the complainants and for the best interests of the estate that the land situated in Shawnee county should be sold to liquidate the remaining unpaid debts of the estate; that it was impossible to make such sale by reason of wrongful acts, claims, and pretensions of the defendants Quinton and Bergen, who, it was alleged had performed certain legal services in litigation over the Kansas lands for the testator in his lifetime and had on March 14, 1893, entered into a written contract with him whereby it was agreed that, when the lands should be sold or disposed of, Quinton and Bergen should have for their professional services one-third of the net proceeds after deducting $60,000 therefrom; that the contract contained the following clause: 'No sale or disposition to be made without the consent of all parties to this agreement'--that defendants had claimed and publicly given out that no valid sale could be made of the land without their consent and for the purpose of preventing the administrator c.t.a. from selling and disposing of it the bill alleged as follows: That they, Quinton and Bergen, 'had refused and still refuse although often requested by your orators to consent to any sale or disposition of the land by him (the administrator c.t.a.) and in further aid of such purpose the defendants or some one of them have lately caused to be placed on record in the office of the registry of deeds of Shawnee county, aforesaid, a copy of the said agreement purporting to be so acknowledged as to entitle it to record'; that the administrator c.t.a. was in the possession of the land holding the legal title to it for the purposes of the trusts created by the will; that his co-complainant, Morrell Keith Neville as heir at law, was the beneficial owner of the land excepting in so far as the same was vested in the administrator c.t.a. for the purposes of the trusts.

The bill alleged that the only interest which defendants Quinton and Bergen or any of the defendants claiming under them had in the land by virtue of their agreement with Keith in his lifetime was a claim or lien in the nature of an equitable mortgage to secure a debt due them from Keith, with the right to have the land sold for the purpose of fixing their compensation according to the terms of the agreement and for the purpose of making the lien available.

The prayers of the bill, among other things, were that the part of the agreement of 1893, which provided that the lands should not be sold or disposed of without the consent of Quinton and Bergen be declared inoperative as repugnant to the main purpose of the agreement and in restraint of alienation, that the land be sold in order to fix the claim or interest of Quinton and Bergen to it, and that complainants be allowed to redeem from the lien by paying to Quinton and Bergen the amount of their interest in it when so ascertained. There was also a prayer for general relief.

After an unsuccessful demurrer the defendants Mary K. Quinton and E. W. Poindexter, assigns of all the rights of Quinton and Bergen, answered, admitting by failure to deny the allegations of the bill, complainants' right, title, and interest in the land in question under the testator's will as stated in the bill; averring some misconduct on the part of the administrator c.t.a. which it is conceived has little pertinency to the merits of the controversy, and is therefore not detailed here; averring that complainant, the administrator c.t.a., had ample money on hand to pay the debts of the estate without selling the Kansas land; that no offer to sell had ever been made to defendants, and that Quinton and Bergen or their assigns had never refused to join in a sale or disposition of the land; that the provision of the contract of 1893 to the effect that the land should not be sold except by their consent was inserted solely for the benefit of Quinton and Bergen 'as protection for them in their contingent fee * * * as protection to the said E. S. Quinton and Abram Bergen for a reasonable fee * * * so that they might have some way and power of protecting themselves against the sale of the property that would cut them off from any compensation for their services.'

The general replication in equity was filed, and after the testimony was taken and the proofs closed complainants filed a motion to suppress certain depositions taken by defendants to show the actual value of the legal services referred to in the contract of 1893. The case was afterwards argued by counsel and submitted for a final decree, which was signed and handed down November 19, 1903. Simultaneously therewith the circuit court sustained the motion to suppress some of defendants' depositions.

The court specifically found in and by the final decree that the title and beneficial interest in the land was vested in complainants as stated in their bill, subject only to an equitable lien in favor of Quinton and Bergen or their assigns for compensation for their legal services; that the parties to the agreement of 1893 had been unable to agree upon a price at which the land could be sold or disposed of; that under the pleadings and facts established by the evidence the court had the power and ought to terminate the relations between the parties growing out of the agreement of 1893, and to adjudge and decree to them their separate and respective rights in the premises as nearly as practicable; that neither the testator in his lifetime nor the complainants as successors in interest to him had acted in bad faith or otherwise violated or refused to conform to the terms or intent of the agreement in failing or declining to sell or consent to a sale of the lands upon terms or conditions proposed or suggested by any other party in interest. The court then declared the rights of the parties, giving defendants an equitable lien upon the land for one-third of the net proceeds of its sale in excess of $60,000 according to the terms of the agreement, and appointed a master to invite and receive offers for the land for a period of over four months from any of the parties in interest or any other persons whom they might induce to make offers therefor and to report the same without delay to each of the parties interested for his or their acceptance or rejection, fixing an upset price, however, of $61,000 for the land. The court further ordered that, if any offer not less than $61,000 should be consented to by the parties, a sale should be made at that price, and the administrator c.t.a. should in the execution of his powers under the will of the testator convey the land to the purchaser. The decree further provided that, if no offer should be received or consented to on or before the time limited therefor, then the land should be advertised and sold for not less, however, than $61,000, and the proceeds of the sale should be brought into court for disposition and distribution to the parties according to their rights determined by the decree.

Subsequently, on May 18, 1904, the defendants Mary K. Quinton and E. W. Poindexter filed in the court which rendered the decree a bill of review to secure its reversal. That bill set out the original bill, demurrer, answer, replication, and final decree in extenso, and prayed that the latter be set aside because erroneous on the face of the record. Certain pleas and demurrers were filed which on hearing were sustained by the circuit court and the bill of review was dismissed. This appeal by the defendants in the original action challenges the correctness of the ruling resulting in the dismissal of the bill of review.

E. S. Quinton (G. C. Clemens and A. B. Quinton, on the brief), for appellants.

E. Wakeley (James A. Troutman and Robert Stone, on the brief), for appellees.

Before SANBORN and ADAMS, Circuit Judges.

ADAMS Circuit Judge, after stating the case as above, .

The function of a bill of review is to obtain a reversal of a decree by the court which rendered it either for error of law apparent on the record or to secure a rehearing of the facts on a showing of newly discovered evidence. 2 Daniell's Ch. Pl. & Pr. (5th Ed.) p. 1576. When the bill is for the purpose first mentioned, consideration can be given to the record of the original cause only. The evidence at large cannot be examined or considered, and any facts averred in the bill of review inconsistent with the pleadings and decree in the main case can have no effect in determining its...