Riley v. Turpin

• Decision Date: 11 February 1960
• Citation: 53 Cal.2d 598,2 Cal.Rptr. 457,349 P.2d 63
• Court: California Supreme Court
• Parties: , 349 P.2d 63 William Branch RILEY, also known as William Brand Riley, Plaintiff and Appellant, v. Hallie Ford TURPIN, Defendant and Respondent. S. F. 19971.

Page 457

2 Cal.Rptr. 457

53 Cal.2d 598, 349 P.2d 63

William Branch RILEY, also known as William Brand Riley, Plaintiff and Appellant, v. Hallie Ford TURPIN, Defendant and Respondent.

S. F. 19971.

Supreme Court of California, In Bank.

Feb. 11, 1960.

Hillary H. Crawford and Hillary H. Crawford, Jr., San Francisco, for appellant.

Russell T. Ainsworth, San Francisco, for respondent.

SCHAUER, Justice.

In this suit for the partition of real property plaintiff appeals from certain portions of an 'Order Allowing Attorneys' Fees to Both Parties.' We have concluded that plaintiff's attacks upon such order are without merit, and that it should be affirmed.

Defendant owned a life estate in the subject real property, and plaintiff and defendant owned contingent remainders dependent upon which one of them survived. Plaintiff, by paying real property taxes which were the obligation of the life tenant, was subrogated to the tax lien. He sued for partition. An interlocutory judgment was entered ordering that the property be sold and the proceeds be divided between the parties according to a percentage formula based only on the respective values of their contingent remainders. On appeal by defendant we held in Riley v. Turpin (1956), 47 Cal.2d 152, 158(7), 301 P.2d 834, that 'the judgment must be reversed to permit determination, in accordance with * * * sections (778 and 779 of the Code of Civil Procedure ¹), of the sum to be received by defendant as satisfaction for her life estate.'

Following remand and a hearing the trial court on February 15, 1957, by revised findings, conclusions and interlocutory judgment, determined that the value of defendant's life estate was $2,652.79 and ordered that attorneys' fees and expenses of sale be fixed at the time of confirmation of sale. The interlocutory judgment further ordered 'That the proceeds of sale shall be applied as follows: First' to expenses of sale 'and to any attorney's fees allowed by the Court'; 'Second' to plaintiff's costs; 'Third: That after payment of the above expenses the proceeds of sale, then remaining, shall be apportioned as follows: to: * * * (defendant) $2,652.79 as the value of her life estate, and then out of any balance which shall then remain * * * (76.59%) thereof shall be paid to plaintiff * * * and * * * (23.41%) subject to deductions hereinafter specified, is allocated for the account of defendant, * * * and that said sum of $2,652.79 and said percentage so allocated to the defendant shall be, and is, surcharged with the sum of $185.56 still * * * unpaid on delinquent taxes * * * Fourth: That out of the proceeds of sale above allocated to said defendant * * * the Referee shall pay to the plaintiff the sum of $2,636.80,' the amount of plaintiff's tax lien, plus interest on such sum. ² Both the interlocutory judgment and the findings and conclusions were prepared by plaintiff's attorney.

The interlocutory judgment became final without appeal. The property was sold for $16,532 gross. On December 16, 1957, the trial court made the order from which this appeal is taken. In such order the court finds 'that reasonable counsel fees incurred by the plaintiff and (the) defendant herein have been for the common benefit,' and that $2,000 is a reasonable sum to be allowed to each party for such fees. The order awards $2,000 to each party and further provides that the total $4,000 attorneys' fees 'shall be paid by the parties hereto in proportion to their respective interests in the property, and the proceeds of sale thereof as determined and allocated by the interlocutory judgment in partition.' (Italics added.) The parties in their briefs agree that the effect of the italicized portion of the order is to award defendant $2,652.79, the value of her life estate, free of any charge for attorneys' fees.

Plaintiff's appeal is from only the portion of the order which allows defendant her attorney's fees and the portion which charges all attorney fees only to the contingent remainder interests of the parties and fails to charge the value of defendant's life estate with a proportion of such fees.

As grounds for reversal plaintiff first contends that the services of defendant's counsel were not for the 'common benefit' as required by the provisions of section 796 of the Code of Civil Procedure, and that therefore the court erred in allowing fees for such counsel. Section 796 declares that 'The costs of partition, including reasonable counsel fees, expended by the plaintiff or either of the defendants, for the common benefit * * * must be paid by the parties respectively entitled to share in the lands divided, in proportion to their respective interests therein, and may be included and specified in the judgment * * *. When, however, litigation arises between some of the parties only, the court may require the expense of such litigation to be paid by the parties thereto, or any of them.'

More particularly, plaintiff points out that until our decision on the first appeal (Riley v. Turpin (1956), supra, 47 Cal.2d 152, 301 P.2d 834) and as shown by the opinion in that case, defendant resisted partition, with the claim that plaintiff had no interest in the subject property, that it belonged to defendant alone, and that plaintiff was a mere volunteer in paying the delinquent taxes. Thus, urges plaintiff, the services rendered by defendant's attorney were for defendant's benefit alone and not for the common benefit. Regardless of the plausibility such contention might otherwise appear to possess it is without merit in the circumstances of this case. In Capuccio v. Caire (1932) 215 Cal. 518, 528-529(1), 11 P.2d 1097, this court first quoted as follows from its opinion on an earlier appeal in the same litigation (Capuccio v. Caire (1929), 207 Cal. 200, 208(3), 227 P. 475, 73 A.L.R. 8): 'Assuming that the action for partition was properly brought and that the trial court shall have so determined upon the issues as framed in said action and having so determined shall proceed to distribute said property or the proceeds thereof among the several persons so found to be the owners as cotenants of hitherto undivided interests therein we are of the opinion that the more just and equitable rule to be applied to such cases would require a proper division of the expenditures entailed in the maintenance of such actions for the common benefit among those who shall have been found to be entitled to their respective shares and interests in said property by the ultimate judgment of the court, regardless of whether or not there had arisen and been litigated controversies either over the question as to whether or not the parties to the action were cotenants or over the extent of their respective interests as such in the property, thus sought to be divided.' (Italics added in second Capuccio case.)

In the second Capuccio case the court then continued (at page 528 of 215 Cal., at page 1101 of 11 P.2d): 'By this language, it was our intention to declare that counsel fees may be allowed under the provisions of section 796 of the Code of Civil Procedure for services rendered for the common benefit even in contested partition suits,' and pointed out that the exception stated in the last sentence of section 796 applies only where controversial litigation arises between some of the parties only (rather than among all parties), in which case the court may require the expense of such litigation to be paid by only the parties thereto. (See also Randell v. Randell (1935), 4 Cal.2d 575, 582(5), 50 P.2d 806).

Plaintiff and defendant were the only parties to the present partition litigation, all controversies were between themselves alone, the court allowed counse...