DocketNumber: No. 34381.
Citation Numbers: 199 So. 308, 190 Miss. 299
Judges: McG-ehee, McGehee
Filed Date: 12/23/1940
Status: Precedential
Modified Date: 10/19/2024
As compensation for legal services rendered on behalf of Dr. J.A. Hardin and wife in the case of Hardin et al. v. Grenada Bank et al., reported in
It is the contention of the appellants in the case at bar that they are entitled not only to a one-fourth interest in the land recovered for the Hardins, but that they are also entitled to a personal decree against them for one-fourth of the $10,916.77 and one-fourth of the cash surrender value of a $10,000 life insurance policy on the life of Dr. Hardin, amounting to $2,053.36, which was pledged to the Grenada Bank as part of the security for the alleged indebtedness, and which policy was recovered along with the land as a result of the litigation. The court below allowed their claim for a one-fourth interest in the land and in the cash surrender value of the life insurance policy and ordered a sale of the land for partition. The claim of the appellants herein for one-fourth of the alleged indebtedness claimed by the bank against the Hardins *Page 305 was disallowed. From the disallowance of that item, this appeal is prosecuted.
It is obvious that the object sought to be accomplished in the suit between the Hardins and the Grenada Bank was the recovery of the land and other security free of the alleged indebtedness claimed by the bank against the Hardins. The successful effort of the attorneys in obtaining an adjudication that there was no indebtedness due and owing to the bank at the time of the renewal of the deed of trust and at the time of the foreclosure thereof was the means by which the end desired was accomplished — the recovery of the land and insurance policy. There was no judgment or decree against the Hardins for the $10,916.77 at the time of the employment of the appellants as their attorney, nor was there ever any such judgment or decree against them for this amount, or for any other sum during the progress of that litigation. There was merely a finding by the master to the effect that the bank was entitled to such a decree, as embodied in his report long after the execution of the contract, but which finding was not approved by the decree of the chancery court. And, it is erroneous to say that the legal services resulted in a benefit to the Hardins to the extent of the value of the land at $10 per acre, of the insurance policy, and also to the extent of the indebtedness claimed against them by the Grenada Bank, since it is apparent that it was within the contemplation of the parties that either the payment of the indebtedness or an adjudication that nothing was due the bank either at the time of the execution or foreclosure of the deed of trust would necessarily result in restoring the title of both the land and insurance policy to the Hardins as an incident thereto. Hence, it is clear that the chancellor was correct in holding that the adjudication of the fact that no indebtedness was due the bank was what caused the security to be recovered; and that, therefore, the appellants would not be entitled to a one-fourth interest in the property and also in the *Page 306 amount of the non-existent debt asserted by the bank for which the property was claimed to be held as security.
The effect of the provision of the contract hereinbefore quoted is that if the attorneys had been able to recover, in addition to the land and other security, a decree against the bank for any overpayment of the several loans, they would be entitled, in such event, to one-fourth of the security recovered and a one-fourth interest in the money decree; or, if they had only been successful in securing a partial extinguishment of the indebtedness by the application of the payments of usurious interest thereon and had not recovered the security, they would only have been entitled to one-fourth of the reduction obtained. But, having recovered all of the security as a result of an adjudication that there was no debt due, they are only entitled to a one-fourth interest in the property recovered.
Affirmed.