Emery v. Goff , 198 Okla. 534 ( 1947 )

PER CURIAM.

This action was instituted in the district court of Okmul-gee county by Ellis Clifford Goff against A. L. Emery and Frances B. Emery to recover a quarter section of land and to quiet title, and for rents and profits. On trial to the court judgment was rendered for plaintiff on both causes, and defendants appeal.

The land in question originally belonged to Misc. Goff, mother of the plaintiff, who occupied the same as a homestead with her husband, Wesley Goff, and the plaintiff.

Misc. Goff executed and delivered a deed to the land to one who subsequently conveyed to others. She then instituted an action to cancel the conveyance for violation of an alleged trust. While the action was pending, Misc. Goff died, leaving her husband and the plaintiff as her only heirs. Administrator of the mother’s estate was duly appointed, but nothing was done to revive the action.

Subsequently, a guardian was appointed for plaintiff herein, who was then a minor. The guardian, pursuant to the direction of the county court, and by its written approval, entered into a contract with the defendant A. L. Emery, a practicing attorney, whereby the guardian employed Emery to enter the aforesaid action and to prosecute by cross-petition the claim of the ward to said land as the sole and only heir at law of Misc. Goff. The pertinent portion of said contract, after identifying the action then pending, reads as follows:

“The second party is an attorney at law duly licensed to practice in the State of Oklahoma. The first party employs second party, as such attorney at law, to represent first party in the prosecution of said action. If second party is successful in cancelling the said deeds and otherwise clearing the title to the said land in said first party, or Ellis Clifford Goff, the first party agrees to execute and deliver to second party a good and sufficient warranty deed for an undivided one-half interest in all, or any part of said land, recovered in said action or actions which might be necessary to institute. Or, if for the best interest of both parties, the county judge may set aside half of said land for second party and the said first party agrees to execute and deliver to second party a good and sufficient deed for said half of said land so set aside by said county judge; the said county judge to be the judge of what is for the best interests of the parties. First party agrees to deposit from time to time such sums for costs as required by the court clerk and to pay also the necessary expenses in the prosecution of said action, or actions.”

The contract was approved by the county judge in due form.

Emery performed his part of the contract, and recovered the land for Ellis Clifford Goff, subject, however, to the contract 'between his guardian and Emery.

Prior to said contract the administration proceedings in the matter of the mother’s estate were concluded and the plaintiff herein determined to be the only heir of Misc. Goff, deceased.

Thereafter, Emery filed his motion or petition in county court seeking an order directing the guardian to execute a guardian’s deed to him in accordance with the above contract. The order was entered as prayed, and the guardian, pursuant to the order, executed and delivered to Emery a deed conveying to him an undivided one-half interest in the land. It may be conceded that this deed was ineffective.

Thereafter, plaintiff’s father, Wesley Goff, commenced an action in district court against the plaintiff and Emery to recover an undivided one-half interest in the land as the husband of Misc. Goff. Wesley Goff was unsuccessful in that action (Goff v. Goff, 124 Okla. 63, 253 P. 1014). Among other questions decided therein, is was determined that the homestead character of the land in question was determined by the county court’s decree, of distribution.

In December, 1931, approximately ten years subsequent to the execution of the guardian’s deed, Emery commenced an action in district court against the present plaintiff, then still a minor, to partition the land pursuant to 12 O. S. 1941 §§ 1501-1516. Emery alleged that he and the minor Goff were tenants in common, each owning an undivided one-half interest in the land. He based his own title on the contract and guardian’s deed aforesaid. He also sought judgment against Goff, plaintiff herein, for $924.92, representing taxes paid by Emery on behalf of the minor during the intervening ten years of cotenancy, and other expenses laid out in Goff’s behalf. The sum so claimed had previously been allowed by the county court as representing just claims against young Goff’s estate, and the claims bore the written approval of said court. No attorney’s fees were included in said claim.

In the partition suit the plaintiff herein was represented by a duly. appointed guardian ad litem. In the answer the validity of the guardian’s deed was attacked on the ground that the same was “void and of no effect, for the reason that the same was made and obtained from the guardian under a void order of the county court of Okmulgee county, Oklahoma, and that said court was without power or jurisdiction to make such order.” It was also charged that the land was the homestead of the minor and not subject to partition. The validity of the aforesaid claims of Emery was also attacked.

After a trial of the issues as authorized by sections 1504, 1505, supra, the court held the deed valid and rendered judgment for Emery for the $924.92 aforesaid, and decreed each party to be the ovmer of an undivided one-half interest in the land, and ordered partition (sec. 1505). The commissioners appointed by the court (sec. 1506) found that the land was not suitable to partition in kind and appraised the same at $1,600.

Emery elected to purchase the land at the appraised value (sec. 1512, supra) and asked that the price thereof be credited on the money judgment mentioned above. The court so ordered; and in due course sheriff’s deed was executed and delivered to Emery, who, by order of the court, was placed in possession of all the land. No appeal was taken.

The petition, with its amendments, in the instant case charges that the attorney’s contract aforesaid and the guardian’s deed were executed without authority of law, and beyond the jurisdiction of the county court, and void; that the judgment rendered in the partition proceedings sustaining said contract and deed was void and beyond the power and jurisdiction of the district court, and was a fraud against the rights of the plaintiff.

It is further charged that no part of the claim of defendant Emery for $924.92, for which he sought judgment in the partition action, was a proper charge against plaintiff’s estate, and that the approval thereof by the county court was procured by fraud, and was void as to plaintiff. It is alleged that as a result the judgment of the district court based on said claim was void.

Defendants met the issue and pleaded the judgment in partition and the orders of the county court as res judicata of all issues.

Plaintiff commenced the present action within the year after reaching his majority and asserts that the same is a direct attack upon the judgment and orders aforesaid, and was instituted pursuant to his right to show cause against the same within one year after majority, as provided by 12 O. S. 1941 §§ 700, 1031 (8). It is insisted that the judgment and orders are void on the face of the record, and were fraudulent, and that the present action is .therefore a direct attack thereon.

The present action constitutes a collateral proceeding against the district court judgment. But, so far( as it attacks the judgment as void on the face of the record or void for fraud, it is a direct attack thereon in equity.

A judgment void on its face may be set aside any time, and a judgment void for fraud (sec. 1031 (4)) must be attacked within two years from its rendition, or, if defendant is an infant, he may attack a judgment for errors therein within .12 months after arriving at full age (sec. 1031 (8)).

Plaintiff says the petition filed by Emery in the partition proceedings failed to state a cause of action in that the contingent fee contract and the guardian’s deed therein pleaded were void on their face and insufficient to support a cause of action, and that the judgment sustaining Emery’s claim to the undivided one-half interest was therefore void on its face.

Certain of our decisions are cited in support of the contention that the guardian of an infant has no power to make an executory contract for the sale of the infant’s real estate. That is the rule. Smith v. Rockett, 79 Okla. 244, 192 P. 691, and cases there cited. And certain of our decisions are cited in support of the contention that a ward’s real property may be sold only in the manner and for the causes prescribed by statute. Cochran v. Davis, 154 Okla. 103, 6 P. 2d 685, and cases there cited.

An examination of the cited cases shows that the sales involved therein were the ordinary probate sales of real estate belonging to wards, and had no reference to contingent fee contracts of attorneys impressing the real estate with a claim in compensation for services rendered in litigation involving the ward’s title to such real estate. Plaintiff cites no decision of this court holding that such a contract is invalid. In fact, this court has recognized a contract of this character as binding upon the ward’s estate. First National Bank & Trust Co. of Tulsa v. Bassett, 183 Okla. 592, 83 P. 2d 837, 118 A.L.R. 1276. In speaking of a contract of the same nature as the one here considered, the court said:

“The contract here was expressly for the ward’s benefit, to recover certain valuable land, and was approved by the county court. There can be no question but that contracts made for the benefit of the ward’s estate and approved by the proper court are enforceable. The guardian’s argument is that Nelson could not have created a future liability upon the ward’s estate,, and that this contract of employment created no legal liability, but bound Nelson, as guardian, personally.”

The rule is there stated as follows:

“Where the guardian of an Indian minor makes a contingent contract with an attorney to handle litigation for the recovery • of valuable lands for ward’s estate, the contract being approved by the county court and such services are necessary and beneficial, the contract is valid and binding upon the ward’s estate.”

In that case the contract provided that the attorney should receive 50 per cent of any land or money recovered. The court held the contract valid in its entirety. The rule, therefore, applies in the instant case.

The contract itself here fixed the interest of the attorney in the land when the land was recovered. Such contracts are authorized in general. 5 O. S. 1941 § 7. The contract constitutes an equitable conditional assignment to the attorney of the subject of the litigation, to take effect on successful completion of the litigation. In the instant case the minor had only a chose in action or right of action for the recovery of the allotment of his mother which had been conveyed away.

In Lashley v. Moore et al., 112 Okla. 198, 240 P. 704, we held as follows:

“An attorney agreed to conduct litigation for quieting title to his client’s real estate, and the client agreed as compensation ‘to make, execute, and deliver to said second party (attorney) a good and sufficient warranty deed conveying an undivided one-half interest in and to said lands above described.’ Held, that the agreement constituted an equitable, conditional assignment to the attorney of an interest in the subject of .litigation.

“Such contract was not illegal or against public policy.’.’

The contract involved was between the guardian of a restricted Indian and an attorney to cancel deeds and other conveyances to ward’s lands, and was approved by the county court.

Fry v. Wolfe, 106 Okla. 289, 234 P. 191, involved a contract between the guardian of an Indian minor and an attorney-at-law for the recovery of the allotment of a deceased Indian “and whereby the defendant in error (the attorney) was to receive a fee of one-half of said land in the event the action was successful.” In this case third parties bought the land pending the litigation, and the attorney brought suit against them on the contract. He recovered judgment for one-half undivided interest in the land. Affirmed by this court.

Berryhill v. Spillers, 105 Okla. 255, 232 P. 376, involved an approved attorney’s contract between the guardian of full-blood Creek minors and Spillers. It was agreed that the attorney would receive 25 per cent of the value of property recovered or one-fourth of the real estate recovered. Suit was brought and a recovery had for 25 per cent of the value of the property recovered. This court affirmed.

In the opinion it is said:

“The contract was presented by the guardian upon his petition to the county court of Creek county for approval. The court, after a hearing, entered its order duly authorizing the guardian to enter into the contract, and approved the contract for the contingent fee of 25 per cent. The approval of the contract by the court settled the validity of the contract as between the parties, as to the question of the reasonableness of the compensation as fixed for the attorney for his services to be performed for the minors. Evans v. Harris, 60 Okla. 27, 158 P. 898; McFarland v. Barker, 80 Okla. 274, 196 P. 131; Cotner v. Lon Jacobs Grocery Co., 84 Okla. 1, 202 P. 998; Myers’ Estate v. Myers, 93 Okla. 143, 219 P. 943.” ,

Kelly, Guardian, v. Kelly, 134 Okla. 172, 272 P. 838, involved an attorney’s fee contract for recovery of minor’s interest in dead Creek Indian allotment. The attorney waived all interest in the land except an interest in the oil and gas rights therein. The contract was upheld, and the attorney’s claim for an interest in the oil and gas rights was sustained.

In the opinion we said:

“We can well see that in a case such as here, where there was a destitute infant on one side, making a claim to be the heir of his putative father, and the father and mother of the putative father, sustained by the forces of the Interior Department, contending the child to be illegitimate, and not entitled to any of the property of the minor, that obligations might be incurred in the conduct of the litigation on the faith of the courts carrying out the contract as made. That the failure of the courts to direct on the petition of the guardian that the contract.be so carried out would work the gravest injustice. In the instant case, the litigation was long drawn out; the district court held against the infant in the parent suit, forcing an appeal to this court, where it won. The attorney at every stage of the proceeding ably and effectively represented his infant client, and complied with his said contract.”

In Cabin Valley Mining Co. v. Hall, 53 Okla. 760, 155 P. 570, we held that an oil and gas mining lease made by a guardian for a term extending beyond the minority of the ward was valid, and said:

“The jurisdiction granted to the county court being ‘to transact all business appertaining to the estates of minors,’ and in cases where a guardian has been appointed ‘the court making the appointment has exclusive jurisdiction to control him in the management and disposition of the person and property of his ward,’ this grant would be broad enough to authorize any act to be done or step to be taken that under the circumstances of the case, in the judgment of the court, would be for the best interests of the minor, including authority to authorize the making of a lease for oil and gas mining purposes by the guardian for the lands of his ward for a term extending beyond the minority of the ward. If it were not so, conditions might, and probably would, arise where the interests of the ward would be greatly jeopardized, and the value of his estate caused to suffer serious depreciation and loss for lack of that authority.”

58 O. S. 1941 § 885, which provides a maximum rate of attorney’s fees payable “out of any estate of a minor or an incompetent” except for fees in litigation, specifically exempts from its operation “contingent fees or contract for recovery of property agreed upon and approved by courts. . . .”

Thus it will be seen that in this jurisdiction, in circumstances such as prevail here, by statute and decision an exception is recognized to the common-law rule that a guardian is without power to bind the ward or his estate by contract.

In Appeal of Price, 116 Pa. 410, 9 Atl. 856, it was said:

“It is not only the right but the plain duty of guardians to seek for and recover the property of their wards when held adversely, and to employ counsel for that purpose when necessary. And in our opinion it cannot be questioned that the estate of the ward is liable to make compensation for such service. It is equally clear that the guardian should not be held to a mere personal individual liability in such circumstances, and that the counsel should not be limited to the personal liability of the guardian in recovering their just compensation. That liability may be of no value whatever; but even if it were it cannot be considered as in any manner legally or equitably pledged for the service in question. It follows that if the claim in question is a proper one it is payable out of the ward’s estate.”

See Fillmore v. Wells, 10 Colo. 228, 3 Am. St. Rep. 567.

Since the attorney’s contract was valid and fixed the interest of the attorney in the land when the land was recovered and constituted an equitable conditional assignment to the attorney of such interest, we hold that Emery could maintain the suit for partition and that the decree of partition was valid insofar as it determined that Emery and Goff were each the owner of an undivided interest in the land.

There is no merit to plaintiff’s contention that the district court was without jurisdiction to partition the land in which the minor had an interest. 58 O. S. 1941 § 807; Bilby v. Noble, 106 Okla. 302, 234 P. 198.

The proceedings subsequent to the partition decree were irregular and Emery’s deed growing out of the partition suit was void. The court was without power to order the execution of the sheriff’s deed to Emery under his election to purchase without requiring the consideration therefor to be paid in cash. The election to purchase could not be legally accomplished by applying the amount of the $924.92 judgment toward the payment of the purchase price.

The judgment of the trial court is reversed and remanded with directions to render such judgment as will establish plaintiff’s and Emery’s title to a half interest each in the property involved and to determine the validity of Emery’s claim against plaintiff and to determine the other equities and damages between the parties, including the amounts the respective parties may be entitled to for improvements or rents.

HURST, C.J., DAVISON, V.C.J., and OSBORN, BAYLESS, GIBSON and ARNOLD, JJ., concur. RILEY and WELCH, JJ., dissent.