Opinion
No. 37457.
April 24, 1950.
1. Decree — decree entered by consent — must be enforced as entered.
When in a cause involving among other issues, the sale of the land of the parties for a division of proceeds between them, and a consent decree disposing of all issues has been entered, the decree providing inter alia for the sale of the land, and that out of the proceeds an attorney's fee shall be paid, the decree must be enforced as entered, and it was error on confirmation to refuse payment of attorney's fee as provided in the original decree, the rule that no attorney's fee is allowable in a case where a real controversy is involved not being applicable.
Headnote as approved by Lee, J.
APPEAL from the chancery court of Pike County; R.W. CUTRER, Chancellor.
F.D. Hewitt, for appellant.
In the instant case, the defendant and appellee here, denied that complainant owned any part of the land or the personal property, but when it came to a showdown, and after having found out his mistake an agreed decree was entered adjudicating that the complainant and defendant were the owners of an undivided one-half interest each in the land and the personal property as alleged in the bill of complaint, and agreeing to a sale of the land and a division of the proceeds "after paying all court costs and attorney's fee".
Not only was the complainant, appellant here, entitled to an allowance of an attorney's fee as a matter of law, under the facts of the case, but by an agreement and confirmed by a decree of the Court, the attorney's fee for the complainant was to be allowed.
The contention of the appellee is that because he employed an attorney to represent him the complainant was not entitled to a fee. The test is, was the title controverted, and did the defendant appellee have reasonable grounds to believe that the title of the complainant was not good and could be controverted. Sec. 975, Code 1942; Conger v. Shaw, 206 Miss. 590, 40 So.2d 308, 311; Liverman v. Lee, et al., 86 Miss. 370, 38 So. 658; Brower v. Rosenbaum Little, 125 Miss. 87, 87 So. 130.
B.D. Statham, for appellee.
I. The Court did not commit error in declining to allow the attorney for the appellant a fee as a common charge against the whole property.
A. The allowance of a fee is discretionary. Sec. 975, Code 1942; Hoffman, et al. v. Smith, et al., 61 Miss. 544; Potts, et al. v. Gray, 60 Miss. 57.
B. The Court should not allow a fee as a common charge when the matter is controverted. Hoffman, et al. v. Smith, et al., supra; Billingsley v. Billingsley, et al., 114 Miss. 702, 75 So. 547; Carpenter, et al. v. Carpenter, et al., 104 Miss. 403, 61 So. 421; Hardy, et al. v. Rosenbaum Little, et al., 125 Miss. 87, 87 So. 130; Conger v. Shaw, et al., 206 Miss. 590, 40 So.2d 308.
C. There was no binding agreement to pay the complainant's attorney's fee.
The only question on this appeal is whether or not the court erred in refusing to allow complainant's attorney a fee to be paid out of the whole proceeds of the partition sale of land.
Appellant, Annie Sutton, filed her bill against the appellee, Julius Sutton, in which she sought the following relief: (1) to set aside a decree of divorce theretofore entered; (2) to appoint a commissioner to sell the land described in the bill; (3) to sell a Ford car and other personal property in the house for a division; and (4) for a lien on the appellee's part of the property for back rent. The appellee answered the bill, and denied that complainant was entitled to any relief whatever.
Subsequently, an agreed decree was entered confirming the divorce, dismissing the claim of appellant to the Ford car, the personal property and back rent, dividing the furniture and personal property in the house equally between them, and appointing a commissioner to sell the land. By the terms of the decree for the sale, it was provided that "after paying all court cost and attorney's fee, the proceeds to be equally divided between the complainant and defendant, giving to each a one-half interest."
In other words, appellant consented to the denial of relief to her in the several respects mentioned, and appellee consented to pay one-half of the attorney's fee for the partition.
However, (Hn 1) when the report of the commissioner came on for confirmation, the court refused to allow any part of the fee for appellant's attorney to be paid out of appellee's part. This was error. The appellee had agreed to pay one-half of this fee. The court was without authority to change the agreement — it should have been enforced.
From what has been said, it will be seen that those cases, absolving a defendant from liability for any part of attorney's fee, where a real controversy is involved; Hoffman v. Smith, 61 Miss. 544; Brower v. Rosenbaum and Little, 125 Miss. 87, 87 So. 130; Hardy v. Richards, 103 Miss. 548, 60 So. 643; Carpenter v. Carpenter, 104 Miss. 403, 61 So. 421; and Billingsley v. Billingsley et al., 114 Miss. 702, 75 So. 547; have no application.
Wherefore, this cause is reversed and remanded, with direction to the lower court to allow appellant's attorney a reasonable fee out of the proceeds from the sale of the lot. When this has been done, and the costs of the proceedings have been paid, the residue is to be divided equally between the appellant and the appellee.
Reversed and remanded.