Watkins v. Sedberry

• Decision Date: 09 April 1923
• Docket Number: No. 248,248
• Parties: WATKINS et al. v. SEDBERRY et al
• Court: U.S. Supreme Court

261 U.S. 571

43 S.Ct. 411

67 L.Ed. 802

WATKINS et al.

v SEDBERRY et al.

No. 248.

Argued Jan. 19, 1923.

Decided April 9, 1923.

[Syllabus on pages 571-572 intentionally omitted] Messrs. C. C. Calhoun, of Washington, D. C., and Clarence T. Boyd, of Nashville, Tenn., for petitioners.

Mr. Norman Farrell, of Nashville, Tenn., for respondents.

Mr. Justice BUTLER delivered the opinion of the Court.

This case involves fees and expenses of an attorney for a trustee in bankruptcy. Claims therefor are made on a written contract between the trustee and the attorney, Jordan Stokes, Jr.¹ The amount claimed for fees is about $49,000² and for expenses $1,127.28. The debts, existing at the time of the filing of the petition in bankruptcy and since proved and allowed, amount to $21,000 with interest. The services were rendered in the prosecution of a suit brought by the trustee in the state chancery court against the respondents, the bankrupt and his family, to recover a farm and personal property thereon. The suit was successful, and the value of the property is $99,743.01. After the recovery of that judgment, the respondents petitioned in the bankruptcy case for an order, fixing the amount of indebtedness of the bankrupt, as finally allowed, and the expenses of administration, including a reasonable fee for the attorney of the trustee, to the end that all debts and expenses might be fully paid out of money raised by mortgage of the land so recovered, and that the bankruptcy proceedings be dismissed. After hearing the referee decided that the trustee had no authority to contract in advance for the amount to be paid for legal services, and that the attorney be allowed a fee of $10,000 and $750 for expenses, and that both items be paid out of the property so recovered. The petitioners nad respondents both petitioned for review. The District Court held that the contract was invalid; allowed a fee of $7,500 and $750 expenses, and directed that these sums be paid as a part of the expenses of administration of the bankrupt estate before return of surplus to respondents. Both sides petitioned to revise and also appealed to the Circuit Court of Appeals. That court (275 Fed. 894) dismissed the appeals and dealt only with the petitions to revise. It held that the attorney's fee should be paid out of the debts—i. e., should be borne by the creditors—and not out of the surplus remaining after the payment of debts in full. The award of the District Judge of $7,500 attorney's fees was vacated, on the ground that the amount of the recovery in the chancery court, which was deemed a material element t be considered in fixing the fee, was in the lower court erroneously taken to be $29,000, instead of $21,500, and the District Judge was left at liberty to use his discretion in again fixing the amount, 'with due regard to the modified character of the recovery, and the change of the source from which payment must be made.'

The validity of the contract between the trustee and attorney is first to be considered. The bankrupt filed a voluntary petition in bankruptcy August 24, 1917. He scheduled unsecured debts amounting to $18,260. Many years before any of these debts were contracted, he purchased a farm and caused the deed to be made to his wife as 'trustee' for the use and benefit of herself, her husband and their children; on the advice of counsel, he did not schedule it; and he did not schedule any property applicable to the payment of such debts. The trustee made a preliminary investigation and caused the bankrupt and his family to be examined. The attorney, Mr. Stokes, who had for collection two of the largest claims against the bankrupt, acted for the trustee in these matters. On October 24, 1917, the trustee and attorney made the contract; the attorney agreed to institute such suits as might be necessary and proceed generally to recover property that he might be able to locate belonging to the bankrupt; he agreed to bear the necessary expenses and to indemnify the trustee against all damages and expenses growing out of his employment; it was provided that any property recovered should be first chargeable with the amounts that the attorney expended in prosecuting the claims and that the balance should be divided equally between the trustee and the attorney. The contract was made without notice to or the authority of the creditors, and without the knowledge of the respondents. On the same day, the trustee presented a petition to the referee, showing that the bankrupt scheduled no property and that none had come to the trustee; that after investigation he believed that a large amount might be recovered for the creditors, and that the attorney was willing to bear all expenses and undertake the matter. The referee made an order authorizing the trustee to enter into a contract of employment with the attorney 'on a contingent basis,' and providing that the attorney should be personally responsible for and pay all expenses incurred in the prosecution of any suits. Neither the petition nor the order disclosed what proportion of the property was agreed to be given to the attorney for his services. The probable value of the property proposed to be recovered was not shown. The amount or kind of professional services required could not be known in advance. The amount of attorney's fees to be charged against the estate as an expense of administration is subject to the examination and approval of the court. Section 62a, Bankruptcy Act (Comp. St. § 9646); In re Stotts (D. C.) 93 Fed. 438, 439; W. J. Davidson v. Friedman, 140 Fed. 853, 72 C. C. A. 553; Page v. Rogers, 149 Fed. 194, 195, 79 C. C. A. 153. The trustee was not authorized so to dispose of property of the estate. The amount claimed under the contract is grossly excessive. The contract is invalid.

The attorney claims compensation on quantum meruit, if recovery under the contract is denied. The respondents contend that the contract is champertous and that the attorney is not entitled to any compensation.

The essential provisions of the contract have been stated. There is no ground for the claim that the attorney had an interest in the proposed litigation that would make it proper for him to pay the expenses of the suit and indemnify the trustee. It is true, as contended by the petitioners, that the severity of the old rule of the English common law against champerty, regarding it as an offense malum in se, has been somewhat relaxed. Burnes v. Scott, 117 U. S. 582, 589, 6 Sup. Ct. 865, 29 L. Ed. 991; Roberts v. Cooper, 20 How. 467, 484, 15 L. Ed. 969; Byrne v. Kansas City, etc., Railroad (C. .) 55 Fed. 44, 47; Courtright v. Burnes (C. C.) 13 Fed. 317, 320.

No statute of Tennessee authorizes such a contract. Chapter 66, Acts of 1821 (Shannon's Code, §§ 3171-3184), denounced champerty and required the dismissal of suits, whenever it was made to appear they were prosecuted pursuant to champertous arrangements. Heaton v. Dennis, 103 Tenn. 155, 160, 52 S. W. 175; Robertson v. Cayard, 111 Tenn. 356, 367, 77 S. W. 1056; Staub v. Sewanee Coal Co., 140 Tenn. 505, 508, 205 S. W. 320. By chapter 173, Acts of 1899, this requirement was eliminated; but no decision of the Supreme Court of that state has been called to our attention which would sustain this contract. It is champertous under the rule generally prevailing in this country. Peck v. Heurich, 167 U. S. 624, 630, 17 Sup. Ct. 927, 42 L. Ed. 302, and cases there cited; Jones v. Pettingill, 245 Fed. 269, 275, 157 C. C. A. 461; Casserleigh v. Wood, 119 Fed. 308, 312-315, 56 C. C. A. 212; Stearns v. Felker, 28 Wis. 594, 596; Butler v. Legro, 62 N. H. 350, 13 Am. St. Rep. 573; Huber v. Johnson, 68 Minn. 74, 70 N. W. 806, 64 Am. St. Rep. 456; Moreland v. Devenney, 72 Kan. 471, 83 Pac. 1097.

As to the attorney's right to compensation on quantum meruit: It was the duty of the trustee to employ counsel to bring suit to recover the property belonging to the bankrupt. The fact that the contract between him and his attorney was champertous, even if its terms had been known, could not have been interposed by respondents to defeat the trustee's suit. Burnes v. Scott, supra; Staub v. Sewanee Coal Co., supra, 140 Tenn. 509, 205 S. W. 320; Robertson v. Cayard, supra, 111 Tenn. 365, 77 S. W. 1056; Boone v. Chiles, 10 Pet. 177, 219, 9 L. Ed. 388. They should have handed over the property to the trustee without suit because, as it was adjudged in that case, the bankrupt was the real owner. After judgment went against them in the chancery court, they petitioned the bankruptcy court to fix a reasonable fee for the trustee's attorney. They did not then know of the existence of the contract, and, while they may successfully oppose payment of the amount therein provided for, they have no standing now to object to a reasonable fee. The attorney rendered valuable services in the prosecution of a proper and legitimate suit. Through his efforts there was recovered more than enough to pay expenses and debts in full. The trustee joins the attorney in asking that a reasonable fee be allowed. The making of the contract was not malum in se. The attorney's right to fair and reasonable compensation is not forfeited. Brush v. City of Carbondale, 229 Ill. 144, 152, 82 N. E. 252, 11 Am. Cas. 121; Stearns v. Felker, 28 Wis. 594, 597; In re Snyder, 190 N. Y. 66, 75, 82 N. E. 742, 14 L. R. A. (N. S.) 1101, 123 Am. St. Rep. 533, 13 Ann. Cas. 441; Gammons v. Johnson, 69 Minn. 488, 72 N. W. 563; Rust v. Larue, 4 Litt. (Ky.) 412, 428, 14 Am. Dec. 172; Elliott v. McClelland, 17 Ala. 206, 209; Holloway v. Lowe, 1 Ala. 246, 248.

The respondents cite cases which hold that champerty defeats the attorney's right to recover on quantum meruit,³ but we think that they are not applicable to the facts of this case hereinbefore stated.

The District Court held that the attorney's fee should be paid out of the surplus as an expense of administration. It was decided that the suit was...