Title Guarantee & Trust Co. v. Burdette
| Decision Date | 20 December 1906 |
| Citation | 65 A. 341,104 Md. 666 |
| Parties | TITLE GUARANTEE & TRUST CO. v. BURDETTE. |
| Court | Maryland Court of Appeals |
Appeal from Circuit No. 2 of Baltimore City; Pere L. Wickes, Judge.
Suit by Charles B. Burdette, assignee of Harry C. Barnes, against the Independent Methodist Church of the Nazarene, of Baltimore City to enforce a mechanic's lien. From orders as to distribution of the proceeds of sale, the Title Guarantee & Trust Company, a mortgagee, appeals. Reversed and remanded.
Argued before McSHERRY, C.J., and BRISCOE, BOYD, PEARCE, SCHMUCKER JONES, and BURKE, JJ.
C Alexander Fairbank, Jr., for appellant.
Arthur Herzog and Henry C. Kennard, for appellees.
On December 16, 1905, Harry C. Barnes, through his solicitor Joseph P. Merryman, filed a bill in circuit court No. 2 of Baltimore City against the Independent Methodist Church of the Nazarene, of Baltimore City, a body corporate, which will hereafter be designated "The Church," to enforce a mechanic's lien for work done by him on said church building, and with the bill filed as an exhibit, a copy of his lien claim for $1,099, as recorded in the clerk's office of the superior court. The bill was filed in behalf of Barnes, "and also for such other persons interested herein who may contribute thereto." On the same day the church filed its answer, consenting to a decree as prayed and a decree was passed for sale, appointing the said Joseph P. Merryman trustee to make such sale. On December 23, 1905, Barnes assigned his lien claim to Charles B. Burdette, one of the appellees. On January 13, 1906, the Title Guarantee & Trust Company filed a petition in the case, alleging that it held a mortgage, made February 3, 1905, for $2,000, against the said church building, payable in 60 monthly installments, none of which had been paid, and that Barnes was one of the trustees of said church, and as such, signed said mortgage; that in view of the efforts of said church to escape payment of its obligations the petitioner would suffer great loss and damage unless some one should be appointed to represent its interest together with Joseph P. Merryman. Mr. Merryman answered this petition on January 25th, denying that the church sought to evade any obligation, and alleging that the petitioner's only recourse would be to the funds arising from sale after payment of the mechanic's lien claims, and that if it suffered any loss it would be due to its negligence in not exacting a bond against such liens. He interposed no objection to the appointment of a co-trustee, and subsequently assented to the appointment of C. Alexander Fairbank, who was accordingly appointed February 7, 1906. On February 9, 1906, Clarence E. Jones filed a petition in the cause, alleging that he held a mechanic's lien claim for $156 against said church; that he was informed and believed that the claim of said Barnes was "false, untrue, and invalid," and that his proceeding thereon was "a collusive and conspiring scheme of the parties thereto to defraud and defeat the just claims of the creditors of the church"; that the proceeding was in direct contempt of that court, inasmuch as said Jones had filed a bill in the same court upon his claim, on June 30, 1905, to which said church had demurred; said Barnes making oath that the demurrer was not for delay, and said Jones prayed that the decree passed upon the bill of said Barnes should be "summarily dismissed." This petition was, on hearing, dismissed March 14, 1906. On March 23, 1906, the trustees filed their report of sale, showing a sale for $2,950, and no exceptions being filed thereto the sale was finally ratified on April 25, 1906. On April 4, 1906, under an order of court, the trustees gave notice to all persons having claims against said church to file them with the clerk of said court on or before May 5th, and accordingly, on May 3d, said Clarence E. Jones and R. N. McCullough & Co. filed their respective mechanic's lien claims. In the meantime, Barnes, on April 24, 1906, filed his petition in the cause, alleging that Mr. Merryman had been employed by him to file the bill and conduct the proceedings for him and all other creditors; that he had received no compensation for his services, and was entitled to be paid a reasonable fee out of the fund, and filed with said petition a certificate from two prominent members of the bar that from their knowledge of the services rendered $250 would be a reasonable fee, and thereupon the court passed an order directing the allowance of such fee subject to the usual exceptions. An auditor's account was filed, April 28, 1906, designated "Account No. 1," being an expense account, in which said fee was allowed, and showing a balance of $2,185.26, subject to the future order of the court. Exceptions were filed to the allowance of this fee by the Title Guarantee & Trust Company, and the auditor's account No.1 was ratified except as to that fee, May 12, 1906. When Clarence E. Jones and R.N. McCullough & Co. filed their lien claims May 3, 1906, they also filed a petition denying the validity of Barnes' claim, alleging that they were the only mechanic's lienors against the said church, and praying to be made parties defendants in the cause, and it was so ordered by the court. The exceptions of the Title Guarantee & Trust Company to the allowance of said fee alleged that Merryman's employment by Barnes was a personal contract, and that for his services he should be compensated by Barnes, or allowed a fee out of such part of the proceeds of sale as should be allowed said Barnes; and that, in any event, the fee allowed was unreasonable and excessive. On May 28th, the auditor stated account No. 2, distributing the balance from account No. 1, and awarding (1) to Clarence E. Jones the amount of his lien, $167.86; (2) to R. N. McCullough & Co. the amount of their lien, $458.89; (3) to Barnes the amount of his lien, $1,132.63; and (4) to the Title Guarantee & Trust Company the balance, $400.88, on account of its mortgage, leaving due and unpaid $1,921.12. The Title Guarantee & Trust Company on June 7, 1906, excepted to the ratification of account No. 2, first, because the lien of Barnes was invalid in law, and of no force or effect; and, second, for other reasons to be assigned at the hearing, and also filed the same exceptions to the claims of Clarence E. Jones and R. N. McCullough & Co. On the same day, Burdette, assignee of Barnes, moved to dismiss these exceptions of the Title Guarantee & Trust Company, first, because the validity of Barnes' claim had been finally adjudicated in the cause; and second, because the exceptant was estopped from objecting thereto; and on the following day applied to have the cause placed in the trial calendar "for hearing on exceptions to auditor's distribution account, in conformity with the first equity rule." On June 11th, Clarence E. Jones and R. N. McCullough filed petitions, praying that the exceptions to their claims be dismissed. On the same day the court passed three orders--one, "on hearing and consideration of the motion to dismiss the exceptions of the Title Guarantee & Trust Company to the claim of Clarence E. Jones," and one upon like consideration of the motion to dismiss the exceptions of the Title Guarantee & Trust Company to the claim of R. N. McCullough & Co., and sustaining each of these motions and dismissing the exceptions. The third order of June 11th, after hearing, overruled the exceptions of the Title Guarantee & Trust Company to auditor's account No. 1, dismissed said exceptions, and ratified said account; also granted the motion of Burdette, assignee of Barnes, to dismiss the title company's exceptions to auditor's account No. 2, dismissed said exceptions and ratified said account. And, on the 15th of June, another order was passed, ratifying auditor's account No. 2, and directing the trustees to apply the proceeds accordingly. From these orders, the Title Guarantee & Trust Company has appealed.
The first question raised is to the allowance of a fee of $250 to Joseph P. Merryman, as counsel, for services rendered in filing the bill, and conducting the proceedings to decree. The objection that the allowance is excessive will be first considered. No evidence was taken upon this subject, though there was ample opportunity to do so, if it had been desired. It rests upon the certificate of experienced counsel, of high standing, and upon the presumed discretion of the distinguished judge who allowed it. Under these circumstances, whatever opinion we might entertain of the matter, we should not feel justified in disturbing the amount, unless the disproportion of the allowance to the services rendered was so great as to indicate that the judge below failed to exercise a sound and reasonable discretion, and we cannot say that.
As to the other objection, it may be conceded that where a trustee is also an attorney, and renders legal services in connection...
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