Whitman v. Hanson

• Decision Date: 13 March 1944
• Docket Number: 8612-8619.
• Citation: 13 N.W.2d 495,69 S.D. 610
• Parties: WHITMAN v. HANSON et al.
• Court: South Dakota Supreme Court

13 N.W.2d 495

69 S.D. 610

WHITMAN v. HANSON et al.

Nos. 8612-8619.

Supreme Court of South Dakota

March 13, 1944

Rehearing Denied April 4, 1944.

Odin R. Davis, of Sioux Falls, for appellant.

Tom Kirby and Hans Hanson, both of Sioux Falls, for respondents.

RUDOLPH Judge.

In this action, the plaintiff seeks to set aside the conveyance of certain real property made by him to the defendant, J. F Hanson. Plaintiff's action is predicated upon the claim that the conveyances were made in payment of certain alleged attorney fees which the defendant, Hans Hanson, claimed were owing to him by the plaintiff, and that such attorney fees were unfair and unconscionable. The trial court refused to set aside the conveyances and the plaintiff has appealed.

The following facts are without dispute in the record: The plaintiff Charles J. Whitman, is the son of Joseph H. Whitman deceased. Joseph H. Whitman died testate in Minnehaha county and in 1917 his will was offered for probate in the county court. A contest of the will was instituted by this plaintiff, which finally resulted in a decision of this court sustaining the will. In re Whitman's Will, 45 S.D. 14 184 N.W. 975. Under the will the plaintiff received only $100 from a large estate, the remainder being devised and bequeathed to the testator's sister, Alice Whitman. In explanation of the disposition the testator stated in the will, "reposing full confidence in her (Alice Whitman) that she will see that my said son is properly educated and provided for, and that she will make such provision for him in her last will as she may deem advisable." In 1922 this plaintiff and Alice Whitman entered into an agreement wherein it was agreed that in consideration of the plaintiff surrendering certain deeds signed by his father, he would be given the use of a house in Sioux Falls, and monthly payments of $150 as long as he lived, if "the net income received from the estate of Joseph H. Whitman shall be sufficient for said purpose." Subsequent to this agreement, the property Alice Whitman received from the estate was mortgaged by her, and a part of it was sold. In 1932 a revocable trust in favor of the plaintiff was established by Alice Whitman of the remaining assets of the Joseph H. Whitman estate. Due to the encumbrances upon the trust property the beneficiary failed to receive the $150 monthly payment which Alice Whitman had agreed to pay to him during his life. In 1932 the plaintiff was declared incompetent, but was restored to competency in 1939. It appears from the voluminous files, which are a part of the record, that plaintiff had consulted with several attorneys at law with a view of establishing some interest or right in the property left by his father. In January, 1941, the plaintiff consulted the defendant, Hans Hanson, an attorney duly admitted to the practice of law in this state. The events leading up to the meeting of the plaintiff and Mr. Hanson are disputed and will be subsequently considered. Also disputed is the agreement for legal services and fees that was entered into between plaintiff and Hans Hanson. Undisputed, however, is the fact that Mr. Hanson was employed by plaintiff upon some basis to represent him in an attempt to establish a right on behalf of the plaintiff in the property left by his father, and to assert a claim on behalf of plaintiff against Alice Whitman. In pursuance of this employment, Mr. Hanson proceeded to investigate the possibility of establishing any claim in favor of the plaintiff. Thereafter, Mr. Hanson started two separate proceedings, one entitled in the trusteeship proceedings in the Circuit Court of Minnehaha County wherein it was sought to have the named trustee removed, and a new trustee named to hold the property pending the outcome of a proceeding started in county court. The proceeding in county court was entitled in the Estate of Joseph H. Whitman, deceased, and sought to have the final decree in the estate amended to provide for a trust in favor of the plaintiff, sought an accounting by Alice Whitman and her removal as executrix. Several preliminary hearings relating to these two proceedings were had, but the questions involved were never finally determined by the courts for the reason that a complete settlement was reached between the plaintiff and Alice Whitman. This settlement resulted in a conveyance to the plaintiff of all the property of the trust estate which consisted of approximately 2,000 acres of land in Lake, Turner and Minnehaha counties. As payment of attorney fees the plaintiff conveyed to J. F. Hanson, the wife of Hans Hanson, the title to approximately 475 acres of Lake County land which was a part of the trust estate. It is this conveyance that is under attack in this action. Further facts as found by the trial court will be mentioned in the discussion of the errors assigned by appellant. These alleged errors are seventy-four in number. Obviously, time and space will not permit separate discussion of each of the alleged errors. We have sought to group the assignments in relation to the issues which they present, and the attempt in this opinion will be to pass upon and decide the issues thus raised.

Appellant contends that the contract of employment was barratrous. It is argued that the facts disclose that Hanson, who was not acquainted with the plaintiff, entered into an agreement with one C. L. Engebritson, a friend of plaintiff, to the effect that if Engebritson would secure the employment of Hanson by the plaintiff that Hanson would pay to Engebritson ten per cent of any fee he collected from the plaintiff. Hanson denied any such agreement, and testified that the plaintiff consulted him voluntarily without solicitation in any form. A fact issue was thus presented, and the trial court found in accord with Hanson's version of the facts. Nothing would be gained in stating the evidence, which we have examined with care, and concluded that it is ample to support the findings.

A group of the assignments of error present appellant's contention that the agreement for compensation to be paid Mr. Hanson was entered into at a time when the relation of attorney and client existed. Hanson testified that the agreement as to compensation was made when he was first consulted and was a part of the contract of employment. On this issue the trial court found as follows: "That thereafter and on or about January 10, 1941 said Charles J Whitman *** voluntarily and without solicitation approached said Hanson at his office in Sioux Falls, South Dakota, stating that he *** desired to employ said Hans Hanson as his attorney therein to assist him in recovering certain real estate or an accounting thereof from the executrix of said estate, Alice M. Whitman of Morris Illinois. That said employment would be on a contingent fee basis. That it was then and there orally agreed by and between said Charles J. Whitman and...