Roland v. Roland

Lumpkin, J.

(After stating the foregoing facts.)

1. The consent decree required the husband to pay to his wife $1,150 on or before December 1, 1910, in order for the title to vest in him, and provided that if he did not make such payment by that time the title should vest in the wife. Time was expressly declared to be of the essence of the decree. He did not make the payment to his wife within the time specified, nor did he or any person for him make any tender to her. The evidence entirely failed to show any concealment of herself by the wife. Her husband having left her, she lived with her mother and kindred, but remained in the county from April 4, the date of the decree, until after the first of December. No reason is shown why she could not have been found at any time between those dates. When the consent decree was taken, it was. expressly agreed and understood by the parties and their attorneys that the payment must be made to the wife in person. The attorney who had represented her signed the agreement to the decree along with her, and testified that his power to receive the money was revoked, if he ever had any such authority. The only effort shown to pay or tender the money was a conversation between a bank official (with whom arrangements had been made in regard to the money by the husband and his brother as the purchaser from him) and the attorney who had represented the wife in taking the decree. This occurred on October 22, and the attorney expressly informed the officer that he did not have authority to receive the money, nor did any one else except the wife. Thus, after both the husband and his brother, who was purchasing from him, had been notified by the attorney of his lack of authority, no further effort was shown to pay or tender it within the time limited by the decree, except to deposit it in the bank for the wife. Of course this was neither payment nor tender to her. Time being of the' essence of the consent decree, equity rvould not relieve the husband, or one claiming as a purchaser from him, after the rendition of such decree, from making pajunent within the time limited thereby, unless he were prevented from so doing by fraud, or for other sufficient reason.

2. Unless the conversation .between the bank official and the attorney who had represented Mrs. Roland, the wife, in obtaining the consent decree amounted to a tender binding on the wife, there was nothing showing any compliance with the decree on the part of the husband, or anything excusing compliance within the time fixed by it.

At common law an attorney’s employment was generally held tc end with the entry of judgment for or against his client, unless there was some additional agreement or circumstance continuing the relation or prolonging the authority. This general rule has been much modified. 4 Cye. 940 (c), 952 (D). As early as 1791, the Court of Appeals of Virginia held, in Hudson v. Johnson, 1 Wash. (Va.) 10, that, in general, payment to an attorney at law who had prosecuted an action on a specialty was good, “on the custom of the country, particularly if he have possession of the specialty;” though it was added that “under particular circumstances this rule might not apply, as if notice were given that no such power was vested in the attorney.” In 2 Greenleaf on Evidence, § 518, the same rule is announced, but it is added that “Proof of payment made to the attorney after his authority has been revoked will not discharge the liability of the party paying.” In 3 Am. & Eng. Enc. Law (2d ed.), 365, the rule is thus stated: “It is always an implied power of an attorney to receive payment of a claim intrusted to him for collection; a payment to him, while liis authority is unrevoked, is therefore binding on his client unless it affirmatively ajopears that the party making the payment has actual notice of his want of authority.” And on page 367 it is stated that “A revocation of the attorney’s authority, after- judgment has been rendered but before payment, or an assignment of the judgment, will not affect the debtor paying to the attorney in good faith relying on his authority to receive the payment, unless it appears that the debtor had notice of the revocation or was chargeable with such notice.” See- also Yoakum v. Tilden, 3 W. Va. 167 (100 Am. D. 738); Ruckman v. Alwood, 44 Ill. 183, In Erwin v. Blake, 8 Peters, 18 (11 Curt. 8, 8 L. ed. 852), Mr. Justice Story said that where an attorney obtained a judgment and execution for his client, and levied on and caused to be sold property, which was bid in by his client, and where the judgment debtor had a right to redeem the property within a particular period of time, by payment of the amount to the judgment creditor, there was.strong reason to contend that the attorney was impliedly authorized to receive the amount, and thus indirectly to discharge the lien on the land; at least, if this was the common course of practice in the State where the transaction occurred. But it was said that it was not necessary to rely on that ground. See also Gray v. Wass, 1 Greenl. 257. On the other hand, In re Grundysen, 53 Minn. 346 (55 N. W. 557), it was said that the mere employment of an attorney to foreclose a mortgage does not give him authority to receive from the sheriff money paid after foreclosure, to redeem the property from a sale to the mortgagee.

In this State a recovery of a judgment for money impliedly authorizes the attorney to collect it. Under the statute which gives to an attorney a lien upon suits and judgments (Civil Code, § 3364), a client can not arbitrarily take from an attorney the right to enforce a judgment, without his consent, and so as to destroy his lien for an unpaid fee. But an attorney is not obliged to insist upon his lien or his right to collect the judgment or execution. He may waive it or submit to a discharge. One who pays to the attorney of record the amount of the judgment or execution without notice of any termination of his authority may well be relieved from further liability to the client. But if the attorney and client agree upon a discharge or a termination of his authority, and the judgment debtor is notified thereof, he can not insist upon the right of the attorney to assert his lien or to refuse to have his authority revoked. A case might occur where the question would arise whether such revocation of authority was a mere trick or device to prevent payment within the limited time; but the evidence presents no such situation here. It shows that all parties agreed and understood when the decree was taken that the payment was to be made to the client herself, and not to her attorney, and that his authority (if the decree in question falls within the general rule of the power of an attorney to collect) was revoked. It is not clear that the br,other of the defendant in the former proceeding was not fully apprised of the situation throughout; but if not, he was informed of it on October 22, more than a month before the time for payment had elapsed. Under such circumstances, if the conversation between the official of the bank and the attorney who had represented the wife in obtaining the consent decree had amounted to a tender to such attorney, it would not have taken the place of a tender or payment to the wife. Moreover, if it had been desired to insist that it was the right and duty of the attorney to receive the money, in spite of his declaration that he was without authority to do so, and that a tender could be made to him, it would seem that an actual tender to him should have been made, and not a mere deposit of the money in bank.

3. Error was assigned on the admission of evidence to the effect that it was understood and agreed by both the attorneys and clients that payment should be made only to the wife and not to the attorney, and that the latter was no.t authorized to receive payment. The ground of objection stated in the bill of exceptions was that this evidence was irrelevant. We think it was relevant. The ground of objection argued was that' this was an effort to modify or cliange a consent decree by parol evidence. This argument rested upon a misconception of the basis of the relevancy of the evidence. The decree did not in terms authorize payment to the attorney of the wife, but to her. It declared that.title should be vested in the husband if he should pay a certain sum to the wife on or before a fixed day. If this should be treated as in the nature of a decree for the recovery of money, the attorney’s right to collect would not arise from the words of the. decree, but from the general or implied authority of an attorney. Such authority could be modified or withdrawn by an agreement to which the parties and attorneys assented. The evidence did not conflict with the decree, but showed a withdrawal or negation of any implied authority on the part of the attorney to proceed further, after its rendition.

4. The purchaser contracted with full knowledge of the decree and subject to its terms. The husband had no power to change those terms by a conveyance to his brother. The brother alleged that he had no notice of want of authority on the part of the attorney to receive the money, and thus sought to excuse ’a tender to the client. He failed to show this; but, on the contrary, -proved that, at least on October 22, he had actual notice that the attornejr asserted his want of authority; and that the money was deposited in a bank where it lay until December 2.

When the ease between the husband and wife was before this court on the question raised by demurrer, it was remarked by the writer of the opinion that “the difficulty with the petition is that it prays too much and alleges too. little.” In the present case this statement may well be paraphrased, and it may be said of the plaintiff that his trouble was that he alleged too much and proved too little.

5. Both sides introduced evidence. There was no motion for a nonsuit or for a dismissal. The evidence as a whole required a verdict for the defendant, and it was not error for the presiding judge to so affirmatively instruct the jury, instead of granting a nonsuit ex mero motu.-

6. The judgment complained of in the main bill of exceptions having been affirmed, the cross-bill .of exceptions is dismissed.

Judgment affirmed on the main hill of exceptions. Cross-bill of exceptions dismissed.

All the Justices concur.