McMullen v. Doughty

GREY, V. C.

Bill for partition by Martha A. McMullen against Sarah N. Doughty. On application for counsel fee. Amount of fee advised.

John D. McMullen, for complainant.

Herbert A. Drake, for defendant.

GREY, V. C. (orally). This cause, after litigation extending over more than three years, is about coming to a conclusion. All the matters in litigation appear to have been presented and decided except the allowance of a counsel fee. The complainant moves for the allowance of such a fee. It is opposed by counsel for the defendant on several grounds. Argument has been twice heard on the question.

The suit is for the partition of about 13,000 acres of land lying in Atlantic county, consisting of one main tract and a number of smaller ones. The complainant is the owner of one undivided fifth, and the defendant of four undivided fifths. Actual partition was sought by the complainant. No question has been raised in the cause disputing the complainant's interest, in either quantity or quality, nor has the defendant in any way denied the necessity and propriety of an actual partition.

The defendant's resistance to the allowance of a fee in this partition suit to the counsel for the complainant is that the suit was litigated, that the defendant had employed her own counsel, and that the complainant's counsel had not in the conduct of the suit done anything which was beneficial to the defendant. The object and result of the suit was, as stated, the obtaining of an actual partition of a large landed estate. The proceedings necessary to bring this result were conducted by the complainant's solicitor. The management of the cause was burdened with the difficulties which attend upon an effort to state with precise description the boundaries of extensive tracts of wild land, which had been acquired over a long period of time, from various sources, by inexact conveyancing, and to some extent, without recording deeds. The muniments of the title to these lands were largely, if not entirely, in the hands of the defendant, who was in possession of the family mansion. Her attitude in this cause to the complainant was extremely hostile, and gave rise to many contentions. These disputes did not relate to any differences touching the main object of the suit—the securing to each party an estate in severalty by an actual partition in proportion to her holding. There was no litigation on this point. The accomplishment of this result was all-important to the defendant, more valuable to her than to the complainant, for the reason that the defendant had an interest four times that of the complainant, the value of which was most unfavorably affected by the fact that it was held in common with the complainant, with whom the defendant was upon terms of hostility. The benefits to be derived from the steps taken by the complainant looking to the obtaining an actual partition to be made were accepted all through the proceedings by the defendant. The real point of contention between the parties was at all times the effect to each to obtain the largest possible allowance for her share, and in the most favorable location, and not a disputation concerning the main object of the suit, the obtaining for each of an estate in severalty. On this last-named phase of the case the defendant's counsel rendered no service. What was done was done by complainant's counsel, and the defendant accepted the benefit of it, save in the one incident, which I will presently notice.

As the cause proceeded, it was disclosed by both parties that the extent of the lands was so great, and the documentary evidences of title in such a confused condition, that accuracy of description was almost Impossible. The difficulties of the procedure became so great as to threaten the accuracy of the partition. At this point, at the invitation of this court, an agreement upon a description of the lands was made, and on this the first order for partition was sent to the commissioners. They heard the parties, who each sharply contended for her full share. The report, when it came in, was challenged by the defendant, because of alleged misconduct of the commissioners, collusion with the complainant to the defendant's disadvantage, and unfairness and partiality in the division of the estate. All of these objections were overruled (see McMullin v. Doughty, 62 N. J. Eq. 252, 49 Atl. 914), and this disposition of them was affirmed on appeal. After the objections taken had been heard and overruled, it was for the first time discovered that in the first return of the commissioners there had been set off and valued to the defendant, as part of her share, several large tracts of land which did not belong to the estate, and which, if the defendant had been compelled to accept them, would have done her a great wrong. The inclusion of these outside tracts and their setting off to the defendant as part of her share was a mistake in which the defendant and her counsel participated up tothe point that it was made part of the commissioners' first report. No objections were made to that report on that ground (see opinion above cited). The mistake was discovered after the argument on the objections to that report had been heard, and it was corrected immediately, with the assent of the complainant. There was no fraud or contrivance about it. But as it was a serious injury to the defendant, the matter was sent back to the commissioners, and they were ordered to make a new division, correcting the error. This they have done by their second return, which is not disputed by either party. The happening of this error is, however, a ground which, while it should not deprive the complainant's counsel of all right to a counsel fee, should, I think, affect the amount which should be allowed him for his services. The estate in this case is large and valuable. The difficulties of division have been considerable. The fee should recognize the amount of labor required in the conduct of the suit. The error above referred to was participated in by both parties, but it was the duty of the complainant's counsel to have detected it as he was conducting the suit. His omission to do so has delayed the cause, and made necessary another return by the commissioners. In this one incident of the direct proceedings to the creation of an estate in severalty, the complainant's counsel was at fault, and his omission was disadvantageous to the defendant. In substantially all the other steps in the cause she received four-fifths benefit, while the complainant got but one-fifth. I am not willing, under these circumstances, to allow such counsel fee as the value and importance of the estate divided would otherwise have justified.

Some question has been raised as to the practice in allowing a counsel fee to the solicitor of the complainant out of the whole estate in cases where the defendant is represented by counsel. The decision of the chancellor in the recent case of Kellar v. Kellar (no opinion filed) is cited, where he refused to allow a counsel fee to the complainant's counsel in a partition suit in which the defendant bad employed counsel and the case had been litigated. That decision was made before the chancery act of 1902 (P. L. p. 540) § 91, provided that it should be lawful to Include in the complainant's costs a counsel fee to be fixed by the chancellor on final decree. The chancellor, since the passage of the act of 1902, has indicated that the practice should recognize the change made by that statute, and that, in cases in which the complainant is equitably entitled to a decree for costs, the vice chancellor to whom the cause has been referred should hear the parties on the question of the allowance of a counsel fee to the complainant, and, in advising the final decree, should report to the chancellor what is a reasonable fee to be allowed. If either party is dissatisfied with the vice chancellor's allowance, he may on notice to the other party apply to the chancellor to fix a proper sum.

The circumstances of this case entitle the complainant to a decree for costs, and the allowance of a counsel fee of $400 to the complainant, to be taxed with this costs, will be advised.