Ker v. Paschal

Walkeb, P. J. The appellant assigns several grounds of error, which, so far as necessary, will be stated in the order and connection of the discussion of them. The first assignment of error is “ that the court erred in adjudging $6,000 to the defendants against plaintiff.” There is testimony in the case which tends to prove that it was expressly agreed at the time of making the contract between W. H. Ker and I. A. Paschal, that in consideration that the former should furnish the requisite land certificates wherewith to locate the land in question, the latter should render the necessary legal services in procuring and maintaining the title to the land thus to be jointly acquired; and if the court trying the cause had determined that such, from the evidence before it, was the contract, it certainly would have been supported by sufficient evidence to warrant that interpretation. Edmond Ker, a son of W. H. Ker, states that he was present at the making of the contract, and says — 701 — that Isaiah A. Paschal proposed to witness’ father that, if he would buy certificates, he would have the league located, do all the legal worTc connected, with the same as a consideration for the money paid for the certificates, and that they would own the land jointly and equally; which was agreed to by W„ H. Ker; which, the witness proceeds to state, was consummated on the part of his father by making the purchase of the certificates, which were by said Paschal located on the land, as had been contemplated, in the name of George W„ Paschal at the request of said L A. Paschal, for the reason given by him, that he might thus be enabled to use W. H. Ker as a witness, if necessary. Witness stated again, in his testimony: “ My father bought the certificates; Paschal was to locate and do all the work, and get half the proceeds.” The testimony of Mrs. Paschal tended to prove, at least, that there was an agreement that her husband would do the “lawing,” as she expressed it, but that “ her understanding” was that he was to have full pay for it. The indefinite statements by her as to the conversation between the parties which evidenced the contract were such that, without impugning the sincerity of her impression as to the effect of their agreement, it may be deemed that her testimony, to some extent, corroborated that of Edmond Ker, as it tended, at least, to confirm his statement that I. A. Paschal undertook to perform legal services in relation to the title on some terms or other; and it is not inconsistent with what she mav have gathered from her husband or learned otherwise, that the “ full pay,” which he was to receive, would or might consist in the share of the land which he would acquire under the terms of the supposed contract. Certain letters from I. A. Paschal to W, H. Ker, read in evidence, contained matter alike tending to corroborate the statements of Edmond Ker. One brief extract only I will make from a letter dated April 24, 1854, as follows: “You are aware [thus it is in the record, but written, doubtless, instead of “ aware,” “to have”] one-half of the land and proceeds, deducting necessary expenses. For your portion of the purchase-money, as here stated, you may rely on receiving with great — 702 — certainty in a short time.” The subject of the letter related to proceeds of sales made by the writer to certain purchasers of portions of the land. The evidence evidently failed to satisfy the mind of the court that the contract extended to or established an agreement under which the-Paschals jointly, or that I. A. Paschal alone, undertook, for the consideration which has been named, to render legal services of the character which are proved to have been rendered by them in litigating with adverse claimants to the land. This evidence, however worthy of credibility, did not relieve the subjéct from doubt. ■The principal, witness, Edmond Her, as appears from his statement, was in the eleventh or twelfth year of his age at the time the contract was entered into; about twenty-eight years before the period at which he testified. The liability of a lad so young not to fully comprehend the full meaning of the terms of the contract, together with the period of time which had since elapsed, were circumstances which were' proper to be considered in weighing the force of the evidence given by him, even if the facts stated by him, if true, had been otherwise conclusive, which, however, as will be seen, they were not. The contract, as stated by him, w7as that Paschal would have the certificates located, and do all the legal work connected with the same. It is easy to conceive that the parties may have had in mind, under such terms of an agreement, the necessary legal care and superintendence necessary to make a proper file and designation, the supervision and direction of a valid legal survey and return of field-notes, and the due issuance of a patent. The contemplated venture involved an assault upon an old grant, against which attack,impediments; as might be anticipated, would be placed in every available way at each step taken against it, thus requiring the direction by, and the assistance of, legal counsel" at all the stages of the proceeding, until a patent should be procured. And in addition, it might have been anticipated that the. auxiliary remedies of. the law, through suits by mandamus; against officers of the state and county, might be necessary in-order to obtain a pat-. — 703 — enfc. In that view, the language used by the witness is suggestive, that the contract may have contemplated only such legal services as would be required in the contingencies and for the purposes above supposed; “ to do all the legal work connected with the location of the certificate ” may admit of the interpretation that it has reference not to the litigation that subsequently might arise concerning the title, but simply to the services, labor and litigation, if necessary, which -would be incidental to procuring a patent on a location and survey made under a land certificate. The same witness states that after his father’s removal to Lavaca, in accordance with the request of the latter to L A. Paschal to explain to witness the transaction between them, says that he told him his father had bought and paid, for the certificates according to their agreement, and that he had had the same located at his own expense, also in accordance with said agreement, and that it was his duty under the contract to incur all expenses of whatever kind in locating the certificates and getting the patent. The witness, however, did further state that I. A. Paschal told his father, at the time of making the location (probably in 1846), that there would have to be a suit about the land, and his services in defending the suit, together with other expenses in clearing the title, would be a set-off equal to the amount his father paid for the certificates. “A contract is to be construed in reference to the time when it was made, and to contemporaneous laws and usages.” . . . “ And as to the mode in which a contract is to be performed, the rule is that an agreement must be performed according to its terms as understood and assented to by the parties. The assent and understanding of the parties is to be deduced from the terms of the contract, and the accompanying incidental acts by the rules of legal construction; and whether the circumstances constitute a performance is a question for a jury to determine.” Story on Con., sec. 968. Applying these rules of construction to the contract, to ascertain what acts and services of the locator were intended -to -be comprehended under it, we are of the opinion that — 704 — under the evidence it was admissible for the court to determine, if it was satisfied that the plaintiff’s evidence fell short of establishing the contract as by the plaintiff it was alleged to be, that the defendants were entitled to recover, and have allowed them the reasonable value of the attorneys’ fees claimed, having proper regard to an equitable adjustment of the same according to the rules of law applicable to the facts of the case. The next inquiry under the first assignment of errors is whether the evidence warrants the judgment in respect to the amount of fees allowed as a charge against the interest of the plaintiff in the land. The court found as the basis of the decree, that the plaintiff was the equitable owner of an equal undivided one-half of the Núñez survey, containing about three thousand one hundred and eighty acres of land. The answer of Geo. W. Paschal, Sen., and that of Mrs. Mary C. Paschal, administratrix, prayed that the value of the professional services and expenses about the defense of said land shall be chargeable to the plaintiff to the extent of the interest of W. H. Ker in the same; the defendants asked for no greater or more onerous charge to be adjudged.against the plaintiff’s interest; they pray for an adjustment of the account and a proportionate decree. The claim set up for damages for slander of title need not be noticed here, and it could not have been, nor was it considered through the evidence, nor in the action of the court. The sole issue then was, under the pleadings, what • proportion of the expenses and professional services was the plaintiff’s estate in said land chargeable with, having regard to the extent of that interest? By no rule known to equity proceedings could the defendants have demanded more than they did. The plaintiff’s ancestor, W. H. Ker, on such a basis was chargeable with only one-half of such professional services and expenses as were necessary to be rendered and incurred in and about the litigation concerning the title to said land, and G. W. and-1. A. Paschal, or I. A. Paschal, would have been chargeable with the other half, accordingly as they may have separately or jointly owned such other one-half. The value of — 705 — such services and expenses is attempted to be established, not d. 'ectly, but circumstantially, and by relation or comparison. It was shown that this land was involved in the litigation of a certain suit entitled Dangerfield v. Paschal, which lasted a great number of years with varying fortunes, That ten thousand acres of land were involved in the litigation. It was shown by Edmond Her, and not contradicted, that his father had no other land in Texas than the interest here sued for; and the defendants established by N. O. Green that there was by estimation ten thousand acres involved in the litigation of the Cubier grant. It is to be inferred from the evidence that the Dangerfield v. Paschal suit involved the title to the Cubier grant. F. L. Paschal testified that in 1847 I. A. Paschal located two leagues on the Cubier grant and two leagues on the Zambrano grant, and made other locations below and adjoining the Núñez on both sides of the Salado. N. O. G-reen testified that in the Dangerfield v. Paschal litigation “ he looked upon the Paschals as fighting their own battles; ” and, also, that “ they were .the owners of the interests involved in that litigation.” The same witness, who is an attorney at law, and had been of counsel on the Dangerfield side of that litigation, testifying further on the subject of the value of the professional services of the Paschals, said: “ It is hard to estimate the value of fees. I know most all fees in such cases were conditional. I think the fee of the Paschals in the first and second trials worth about $5,000. The property was then regarded to be as valuable as now.” It was proved also by him that the estate of I. A. Paschal paid on the second trial of the Dangerfield case (at which trial the Paschals were not, it seems, attending personally), to a firm of lawyers for services in behalf of the Paschal side, $1,000 in the district court, and $300 in the supreme court; also, $50, cost of briefs in the supreme court. This testimony furnishes the highest standard contained in the evidence whereby to fix the value of the professional services rendered. It is, indeed, all the testimony directly bearing upon the valuation or estimate of the serv — 706 — ices rendered. The extreme limit then that is furnished is about $6,350 (allowing even the amount paid to other attorneys), as the full value of the services rendered directly and in person, and by the employment of others, in the entire litigation in behalf of all the interests shown to have been involved belonging to the Paschals, as well as the comparatively small interest of a little exceeding sixteen hundred acres belonging to the plaintiff. Six thousand dollars of this sum is adjudged chargeable against the plaintiff’s interest. If the litigation in which the attorneys’ fees are charged had embraced no other nor greater interests than the tract of land which is the subject of partition in this suit, and supposing the sum charged to be a reasonable compensation, the ratable proportion of it chargeable against the plaintiff’s one-half interest could not be claimed to exceed one-half of the amount, say $3,175. But the evidence will not justify taking that state of case, as has been already made apparent; the Paschals were conducting a litigation which involved an interest of ten thousand acres of land, and perhaps of equal relative value to this here in controversy, in which they owned or claimed the whole, except about sixteen hundred acres; this tract is shown by the patent to have been a separate and independent survey, and it would seem that the litigation concerning the title to it would not necessarily involve litigation with other parties claiming other tracts or grants, and if the litigation were all included in one or several suits, that the increased professional labor and responsibility required for the defense or prosecution of interests relating to the other tracts embraced in said ten thousand acres would be apparent, and would impose upon those whose interests were concerned the duty to provide for the payment of the expense — certainly it would not devolve upon W. II. Her. Estimating the tract in dispute in this suit as being one-third of the ten thousand acres, and the professional fees at $6,350, the plaintiff would be properly chargeable with one-sixth part, which would amount to about $1,058. If there exist any facts relating to the litigation for which the fees of attor — 707 — neys are estimated by the witness who testified on the subject, which ought to qualify our construction, they are not, we think, developed in the statement of facts; and from the evidence before us, in the record, we conclude that there was error in charging against the plaintiff’s interest in the land the sum of $6,000; that a partition based on such an estimate of the rights of the parties would be plainly unequal, and that the judgment and decree of the court founded upon it is erroneous, and ought to be reversed. It cannot be maintained, as it is urged it may, by appellant’s counsel, that George W. Paschal, Jr., as purchaser and vendee of George W. Paschal, Sen., may not be subrogated under such conveyance to the rights which the latter had, under whatever lien or incumbrance he may have had, if any, upon the land for his services as an attorney. Walker v. Lawler’s Heirs, 45 Tex., 532, and authorities there cited. The second ground of error assigned is, that the court erred in rendering a general personal judgment against the plaintiff, D. C. Her, for the balance remaining of the §6,000, without limiting his liability to the assets or property derived from his ancestor. As the judgment will be reversed and the cause remanded for another trial, it does not become essential to construe and determine what is the legal effect of the judgment, when considered as an entirety, in respect to the question which is above made. The judgment, it is true, is in form that the defendants “have and recover from the plaintiff the said sum of §4,939.31, with lawful interest thereon until paid; ” but it proceeds further to direct the mode of satisfaction by an order of sale of the particular property on which the decree gives a lien; and there is no further provision made, nor order given, for the issuance of execution generally, or for the satisfaction of any balance left unpaid after the sale specially ordered. The finding of facts by the court as the premises of the foregoing portion of the decree recites that the value of the services and expenses rendered and paid — 708 — by the Paschals “ amount in the aggregate, as a charge against the plaintiff, to the sum of $6,000, which sum is hereby adjudged to the defendants and against the said plaintiffs,”— proceeding to reduce the same by crediting the plaintiff with proceeds of sales of certain lands sold by them, and thus obtaining the amount for which the formal recital of recovery against plaintiff was made, with decree of lien and order of sale. The judgment and decree was probably intended by the court to have no further operation against the plaintiff than to subject the land to sale; yet its terms do not thus limit the recovery against the plaintiff to the ex- • tent of the assets inherited by him from his ancestor which should come to his hands. The judgment certainly should thus limit the terms and extent of the recovery by unequivocal and Well defined expressions in its recitals, for the heir is not liable at all personally except to the extent of assets. The State v. Lewellyn, 25 Tex., 797; Norwood v. Cobb, 37 Tex., 146. The equities which may be adjusted and enforced in a suit for partition are such only as arise out of the relation of the parties to the common property. Freeman on Co-tenancy and Partition,' p. 506. To say the least, the form of the judgment leaves it subject to doubt, whether, as it stands, it is not an absolute adjudication against the plaintiff as a personal judgment for the amount for which it was rendered. The incumbrance which descended with the land to the heir may be made available as a defense against his right to partition and to participate as joint owner until it is removed, or the interest may be decreed to be sold to adjust the rights of the parties in an equitable partition; but when the interest which has thus descended has been sold in partition proceedings, and the heir has no longer an interest in the land to be partitioned, the purposes of the proceedings for partition will have been accomplished, and the remedies of the other tenants in common, to enforce their claim on a moneyed demand against the ancestor, exhausted, unless by proceeding to enforce the collection of their account for money by such other form of procedure — 709 — as may be appropriate. There is neither allegation nor proof that the plaintiff had any assets derived from his ancestor’s estate. We do not deem it necessary to consider the other assignments of error. They relate mainly to the admission and rejection of testimony, and the rulings which were made seem to be in accordance with the rules of evidence applicable to the subject. We do not discover in the questions decided, to which exceptions were taken, any suggesting such error as requires serious consideration, in view of the reversal of the judgment and another trial. The basis on which the court decreed the partition to be made was substantially correct. The first decree which was made by the court was reformed on the plaintiff’s motion, and that which has been recited in this opinion substituted in its place, and was adapted in some important particulars to conform to the views that were urged by the plaintiff’s motion to reform. The appellant, however, assigns that the court erred in partially overruling his motion to reconsider and to remodel the decree, or to rehear the cause. This opinion has sufficiently indicated our views as to some of the grounds of the motion, and we will not consume time in stating the grounds which are thus disposed of. The remaining questions, exclusive of those just alluded to, involve the proposition, whether or not it was correct to exclude from the actual partition to be made the tracts of land which were sold by the Paschals before the death of-1. A-. Paschal, and in lieu thereof to treat the proceeds of the sale as items for adjustment in the settlement of account between the plaintiff and said Paschals. If those sales had been made without the consent or authority of W. H. Ker, and not ratified and approved by him afterwards, certainly the mere relationship of co-tenancy would not have had the effect to validate said sales to the prejudice of the plaintiff in partition. Trammel v. McDade, 29 Tex., 360; Hanks v. Enloe, 33 Tex., 627; Dorn v. Dunham, 24 Tex., 376; McKey v. Welch, 22 Tex., 396. If, however, the sales were made with the knowledge and consents — 710 — of W. H. Kef,— dealing with each other ás copartners in a speculation or venture in' the acquisition and sale of the lands, with • authority on the part of I. A. Paschal in behalf of said Ker to negotiate and effect sales, and receive the price for their common benefit, the lands thus by common consent and action, when conveyed to the purchasers, would cease to constitute part or parcel of lands held in common between them, and Ker would be estopped from ássérting afterwards a claim to the lands sold in partition, or to require his co-tehant to account with him as co-tenant for the land in thé partition of the residue held By them. In the proceedings for partition, it would be proper, nevertheless, in adjusting such equities of all the parties as are presented in this case, as a matter of account bétweeti them, having relation to mutual charges and credits against and for each other, to ascertain and settle such indebtedness, and it would certainly present proper subject-matter for the. action of the court in order to do justice between them. The partnership dealings, if such there were, might require settlement, and in a proper case a court of equity would so adapt the remedy as to charge, if need be, the interest of one or the other with the balance due, according to the nature of the case. The plaintiff introduced and read as evidence letters from I. A. Paschal, tending to show the relations and dealings of the parties in respect to the making of sales of land—showing, too, exhibits therein, of sales as actually made — prices, terms, amounts, etc.; and no evidence whatever was offered which tended to show any objection to the sales, or that they were not made (as from the Tetters they apparently were) in accordance with a perfect understanding with each other. The decree contemplates and provides, as it ought to have done, for the partition on the terms designated of all the other lands remaining unsold, allotting" to the estate of I. A. Paschal, deceased, and to Geo. W. Paschal, Jr., to their share the tracts which they had sold, which in the partition will be charged to them; and the residue, that is, that not «sold, to be partitioned in connection with the allotment — 711 — aforesaid, giving to the plaintiff an amount equal, according to quality and quantity, to the share of the defendants. The partition thus to be made providing also for the payment of whatever may be due from the plaintiff on account of the expenses and fees due, if any, will, it would seem, attain the justice of the case in accordance with the principles of law. [Opinion delivered November 29, 1880.] For the errors which we have indicated, the judgment must be reversed and the cause remanded, and so we shall award. Reversed and remanded.