Spence v. Spence

• Decision Date: 28 March 1940
• Docket Number: 5 Div. 296.
• Citation: 195 So. 717,239 Ala. 480
• Parties: SPENCE v. SPENCE ET AL.
• Court: Alabama Supreme Court

195 So. 717

239 Ala. 480

SPENCE v. SPENCE ET AL.

5 Div. 296.

Supreme Court of Alabama

March 28, 1940

Rehearing Denied May 9, 1940.

Appeal from Circuit Court, Chambers County; W. B. Bowling, Judge.

Suit in equity by Lillie Borden and others against Lena Spence and others, in which there was intervention by Josephine Spence who filed a bill against Charles and Morgan Spence for sale of lands for division, accounting, etc., and a cross-bill by said Charles and Morgan Spence. From an adverse decree, the intervener appeals.

Modified and affirmed.

Walter S. Smith and Walter S. Smith, Jr., both of Birmingham, for appellant.

D. W Jackson and Chas. S. Moon, both of LaFayette, and E. Herndon Glenn, of Opelika, for appellees.

FOSTER Justice.

This is a suit in equity for the sale of 470 acres of farm land and a residence in LaFayette for division among the cotenants, who are heirs at law of Judge Samuel Spence, who died some fifty years before.

Attorneys' Fee.

A controversy has arisen between Mr. Smith and Mr. Jackson in respect to the attorneys' fee to be allowed under the statute. Sections 9319 and 6261, Code.

The bill was filed by Mr. Burns of Jefferson County, who makes no claim to an attorney's fee. It was begun in March, 1934 by some of the heirs and against others, and sought a sale of the farm land, but did not include the residence in LaFayette. There was not much done about it until November 4, 1937, when Josephine Spence intervened as a party complainant, by permission of the court; at that time Jackson had been employed to take the place of Mr. Burns. Josephine Spence had not been a party, but in her intervention she alleged that subsequent to the institution of the suit, she had acquired the interest of her father, Samuel G. Spence, a son of decedent, and a party respondent to the original bill; also that of R. L. Spence, another son of decedent and also a respondent; and that a sale of the land and city property for division was necessary. She then alleged that respondents and cotenants Charles Spence and Morgan Spence have had possession of it all for a long time, and have failed to account to the others for the rents, income and profits, and that they should make an accounting. The prayer included an accounting against them, and a sale for division of both the farm land and the town house, and for an attorney's fee for her solicitor, who was Mr. Smith.

The original bill filed by Mr. Burns had already sought a sale for division of the farm land and an attorney's fee, but had not prayed for an accounting, nor a sale of the town house. The intervener had succeeded to the rights, as she claimed, to some of the respondents in the original bill. The heirs of Judge Spence owned the farm land and town house in the same proportion, and by the same inheritance.

On November 22, 1937, an amended original bill was filed, signed by Mr. Jackson, on behalf of the complainants and included as a complainant Charles A. Spence as guardian for Robert L. Spence, alleged to be a non compos mentis (he was later made a party complainant by next friend).

In an amendment intervener alleged that she had also acquired the interest of Lena Spence and Perry Spence, one of whom (Lena) was an original respondent, and the other (Perry) was an original complainant: that she had also acquired the interest of Lillie Borden, W. G. Spence and Mary Pope, three of the original complainants. She made answer to the amended bill reiterating, more or less, the matters set up in her bill of intervention.

Complainants by Mr. Jackson then made another amendment setting up the mental unsoundness of Robert L. Spence, and his incapacity to execute the deed to Josephine Spence. Much evidence was directed to that issue.

An answer and cross-bill of intervention was filed by Charles and Morgan Spence, and by Charles Spence, as guardian for R. L. Spence, and other respondents in the original bill by separate attorney, disclaiming an effort to bring Charles and Morgan Spence to account, denying the ownership of Josephine Spence of some of the interests she claims, alleging the non compos mentis of Robert L. Spence, denying the claim of her attorney to a fee, joining in a desire to sell for division, and declaring that the only attorney's fee payable should be to the attorneys for the original complainant. Josephine Spence made answer to the cross-bill, acting by her attorney, Mr. Smith.

Charles and Morgan Spence filed plea to the claim for an accounting setting up a discharge in bankruptcy.

The court, by agreement of all parties, ordered a sale of the land, which was confirmed and found, as also agreed to, that a reasonable attorney's fee to be allowed for services beneficial to all the parties was $431.50, and that it should be paid to Mr. Jackson. Mr. Smith claims that it should be paid to him in whole or in part. There was no accounting ordered.

We find nothing in the conduct of Mr. Jackson which subjects him to criticism directed at him in first making R. L. Spence a respondent, and then a complainant, by his guardian or next friend. His interest was not antagonistic to that of the other complainants, who thought it advisable to protect him against the effect of a conveyance he had made to intervener, Josephine Spence. In doing this, he was not representing antagonistic interests. The controversy was mainly to bring Charles and Morgan Spence to account for the rents. He did not represent them, though he and his clients came to the conclusion that Charles and Morgan Spence were not due to restore anything on an accounting. The amount of the attorneys' fee for the joint benefit of all was fixed by stipulation at ten percent. of the proceeds of the sale, and the only issue in that connection was between Mr. Smith, representing the intervener, and Mr. Jackson, representing complainants.

It is claimed that subsequent to the intervention all of the complainants sold their interest to the intervener. This claim is partly based on the fact that an instrument purporting to be signed by D. M. Spence conveyed his interest to Lena Spence, who conveyed it to intervener, and thus some of the complainants had no interest as heirs of D. M. Spence. This instrument is on page 486 of the record, and is in substance and effect a will and not a deed. The trial court so held, and we concur, which we will hereafter more particularly discuss.

So considered, Mr. Jackson continued to represent some of the complainants to the end of the litigation, and represented them all when the amended bill was filed, having taken Mr. Burns' place as their attorney under an agreement antedating the filing of the intervention. The lien for the fee attached before any of the complainants sold to intervener, and was not defeated by such conveyance. And the sale for partition being effected, it has not been defeated at all. Owens v. Bolt, 218 Ala. 344, 118 So. 590.

The original bill did not seek to sell the town house, but that was brought in by Mr. Smith. It sold for $875. The land sold for $3,440, making a total of $4,315, ten percent. of which was allowed as an attorney's fee. Since the house was brought in by Mr. Smith, and was not included in the original suit, that part of the fee computed on the basis of its sale price should be paid to Mr. Smith, so that he should receive $87.50, and Mr. Jackson $344. Section 9319, Code; Matthews v. Lytle, 220 Ala. 78, 124 So. 197.

The services chiefly rendered by Mr. Smith related to the personal rights of his clients, and to the claim for an accounting against Charles and Morgan Spence, for which he is not due to be paid out of this joint fund unless he shall produce a sum for their joint benefit. 14 Am. Jur. 47, section 74; Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184.

Accounting by Charles and Morgan Spence.

The farm land had been in possession and management of those heirs for fifteen years. The only three living children of decedent, Robert L. Spence, Janie Spence and Mary Brooks, all very old and feeble, occupied the house in town until the two ladies died, leaving Robert L. Spence, eighty-four years old, as its occupant. No claim is made for compensation for their occupancy. Charles and Morgan Spence managed the land, collected its income, paid the taxes, upkeep, repairs, etc., and furnished some of the necessary supplies to the three old people mentioned, and paid the funeral expenses of the two sisters when they died. This had been going on throughout their possession of the land. Most of the heirs consented to this arrangement, and all acquiesced in it.

Charles and Morgan Spence were adjudged bankrupts in January 1931, and discharged in August 1938, and claim for any liability which occurred prior to January 1931, they are not chargeable.

This claim is applicable only to the extent that a personal judgment is sought against them. McCaw v. Barker, 115 Ala. 543, 22 So. 131; Tarleton v. Goldthwaite's Heirs, 23 Ala. 346, 58 Am.Dec. 296; 27 A.L.R. 268; 14 Am.Jur. 158, section 92. But relief is also available to require them to take into the computation as a part of the amount to be distributed such sum for rents collected as on an accounting may be chargeable to them. That is, to put it into the hotchpot, and deduct it in making distribution of the shares to those two heirs.

The principle recognized to exist is that the amount of rents and income which they have received, and for which they must account, if any, is that much of the common fund for distribution, on the same footing as the proceeds of the sale. It is not so much in the nature of a lien on their share or interest in the land, as an equitable adjustment of the relationship of the cotenants to each other, and is generally...