Southard v. MacDonald

• Decision Date: 28 March 1961
• Docket Number: No. 38889,38889
• Citation: 360 P.2d 940,1961 OK 72
• Parties: Frank SOUTHARD and Bernice Little, Plaintiffs in Error, v. D. S. MacDONALD, Jr., Defendant in Error,
• Court: Oklahoma Supreme Court

Page 940

360 P.2d 940

1961 OK 72

Frank SOUTHARD and Bernice Little, Plaintiffs in Error, v. D. S. MacDONALD, Jr., Defendant in Error,

No. 38889.

Supreme Court of Oklahoma.

March 28, 1961.

Syllabus by the Court

1. Where it is necessary to cancel a contingent fee contract before any other relief prayed for can be granted, and the cancellation of such contract is the basic relief sought, neither party is entitled to a jury trial for the reason that the cancellation is a purely equitable matter.

2. In an action of equitable cognizance this Court will examine the whole record and weigh the evidence and affirm the judgment of the trial court unless found to be against the clear weight of the evidence or is contrary to the established principles of equity.

3. Where a deed of conveyance is regular on its face, and bears the signature of the grantors and the regular certificate of acknowledgment signed and sealed by a notary public of this State, it imports verity, and impeachment thereof on the ground of forgery can be sustained only by clear, unequivocal and convincing testimony.

Appeal from District Court of Bryan County; Ralph B. Hodges, Judge.

Action to partition land by three of the six children of P. M. Southard and wife, Mary Rosetta Southard, both deceased. The three remaining children were named defendants, along with D. S. MacDonald, Jr.

Two of the children, Frank Southard and Bernice Little, filed an answer and also cross-petitioned against D. S. MacDonald, Jr., alleging that they had employed him as their attorney to represent them in the probate proceedings pending in the County Court of Bryan County on a contingent fee contract, after the death of their father, but during the life of their mother, involving a joint will of their deceased parents; that he had defrauded them as to the contingent fee contract, and also in securing a warranty deed from them covering 40 per cent of the land recovered for them from the estate of their parents.

Cancellation of the contingent fee contract and warranty deed was prayed for. Judgment was for D. S. MacDonald, Jr. on his cross-petition. Frank Southard and Bernice Little appealed.

Affirmed.

James W. Batchelor, Melvin H. Landers, Durant, for plaintiffs in error.

W. L. Steger, R. T. Stinson, Durant, on the brief. Hicks Epton, of Horsley, Epton & Culp, Wewoka, for defendant in error.

HALLEY, Justice.

This was an action by Cynthia Ann Trammell, Robert Lee Southard and Flora Marshall against Frank Southard, Myrtle Carpenter, Bernice Little and D. S. MacDonald, Jr., to partition 420 acres of land.

The record shows that all the parties above named, except D. S. MacDonald, Jr., were the six children of P. M. Southard and wife, Mary Rosetta Southard, who originally owned the land involved and who had executed a joint will. January 18, 1953, P. M. Southard had died and the joint will of P. M. Southard and his surviving wife, was admitted to probate in the County Court of Bryan County, which will provided that the surviving wife, Mary Rosetta Southard, had a life estate in the land involved, with remainder to their six children, above named, in equal shares of 1/6th each. Mary Rosetta Southard died November 15, 1957, when her life estate in the land was extinguished.

Two of the six children of P. M. Southard, deceased and his wife who died in 1957, to-wit: Frank Southard and his sister Bernice Little, filed a cross-petition in the partition suit against D. S. MacDonald, Jr., in which they alleged that shortly after the death of their father P. M. Southard, they consulted with D. S. MacDonald, Jr., an attorney, to represent them with reference to breaking the will of their father so that they might receive their share of the land without it being subject to the life estate of their surviving mother.

The two children who filed the cross-petition will be referred to as plaintiffs and MacDonald as defendant, or by name.

Plaintiffs alleged that when they employed MacDonald he assured them that he could break the will of their father, and asked them to sign a contingent fee contract of 30 per cent of all properties recovered for them, if he broke the will, or nothing if he failed to break the will; that he also asked them to sign another instrument which they were led to believe authorized him to have a guardian appointed for their mother, but which was in fact a warranty deed conveying to him 40 per cent of the value of all property recovered for them.

Plaintiffs further alleged that MacDonald had been guilty of fraud in obtaining the contingent fee contract for 40 per cent of what he recovered, instead of the 30 per cent they agreed upon and that he had deceived them in all the transactions had with him; that shortly after the distribution of their father's estate their mother had given to each of her six children a check for $2,000, 40 per cent of which was retained by MacDonald, who had further defrauded them by agreeing that all of the personal property of their father, including some $25,000 in a joint bank account, should all pass to their mother with no part thereof to the children.

Plaintiffs alleged that the attorney's contract between them and MacDonald is a nullity because procured by fraud and deceit, not properly acknowledged, not delivered and never became a binding contract between the parties thereto, and that there has been a complete failure of consideration therefor, and it should be cancelled, because MacDonald was unsuccessful in breaking the will, accepted $1,600 in excess of the value of his services, and that MacDonald induced them to sign a paper so he could start a guardianship proceeding, and such paper turned out to be a warranty deed to MacDonald, which MacDonald had had recorded and casts a cloud to their title to a 1/6th interest in their land.

Plaintiffs alleged that they were uneducated with very little business experience, while MacDonald is a practicing attorney. They prayed that the contingent fee contract between them and MacDonald be cancelled and that the warranty deed by them to MacDonald be cancelled, and that MacDonald be adjudged to have no further claim against them or against any property or funds from the estate of their deceased father and mother and that MacDonald be forever enjoined from asserting any claim against the land involved adverse to plaintiffs, and that the court determine and fix a reasonable attorney's fee for services rendered and to refund to plaintiffs all sums in excess of a fee determined by the court on a quantum meruit basis.

The above cross-petition was filed April 27, 1959, and MacDonald voluntarily entered his appearance without service of process and joined plaintiffs' request for a partition. On May 15, 1959, he filed an answer to the cross-petition of Frank Southard and Bernice Little, which consisted of a general denial and a specific denial of fraud or deceit. He admitted that on February 5, 1953, he and plaintiffs entered into a written contract of employment, and plead estoppel, laches and the statutes of limitation, and prayed that the court find him not guilty of deceit, fraud or other action which is improper according to the standards of the legal profession. He prayed that he have judgment confirming the contract of employment by plaintiffs and ratifying the warranty deed executed by plaintiffs to MacDonald dated February 17, 1954.

The trial court refused a motion for a jury trial and rendered judgment for D. S. MacDonald, Jr., upon the cross-petition of Frank Southard and Bernice Little and ordered a partition as prayed for in the original petition as to the other parties, none of whom are interested in the issues involved in the cross-petition of Frank Southard and Bernice Little, who have appealed from the judgment in favor of D. S. MacDonald, Jr., on their cross-petition.

The oral and documentary evidence is rather voluminous and much of the oral testimony is conflicting.

Plaintiffs first contend that the court erred in not allowing them a jury trial. They rely upon Section 556, 12 O.S.1951, which is as follows:

'Issues of fact arising in actions for * * * recovery of money, or of specific real or personal property, shall be tried by a jury, unless a jury trial is waived, or a reference * * * ordered, as hereinafter provided.'

We find that the cases cited by the plaintiffs are different from the case here involved, because the primary issue in the cases cited was the recovery of specific real and personal property.

It must be kept in mind that whatever MacDonald did or got was under the contingent fee contract of employment. Until and unless this contract was cancelled the court could not reach the issue of...