September 2, 1915, the appellee Kinsolving | son, attorneys, sued McKee on a contract for instituted a similar suit for $3,000 for legal services rendered in a proceeding for the services, and $11.72 expenses, subject to a credit of $100 paid him by Fitzpatrick. The two cases were consolidated with each other, and were afterwards consolidated with the settlement suit. appointment of a trustee and committee for McKee. The answer alleged that at the time the services were rendered McKee was of unsound mind and had not sufficient mind to understand or to make the contract sued on, or to authorize the employment of plaintiffs. The answer did not deny the execution of the contract, or that the services were rendered, or that the amount charged was reasonable. A demurrer was sustained to the answer; and, the action having resulted in a judgment for the attorneys, McKee's administrator appealed. After controverting the petition, and by way of affirmative defenses, the answer alleged: (1) That prior to the performance of the services sued for Dundon and Kinsolving had been informed by Drs. Clarke, Sprague, and Nevitt, alienists of recognized ability who had examined Fitzpatrick at the instance of Dundon and Kinsolving, that Fitzpatrick was incompetent and unable to manage his After saying that if McKee's condition was estate and that Dundon and Kinsolving knew properly described in the answer he was incathat no legal services were or could be neces- pable of making a contract for any certain sary or usefully rendered Fitzpatrick in an amount of compensation for the services of effort to obtain a judgment of restoration; (2) his attorneys who defended him in the prothat Dundon and Kinsolving knew of the pen-ceedings to have him declared of unsound dency of the chancery suit to settle Fitzpatrick's estate and failed to obtain the consent of the chancellor before filing their actions; (3) that before the final determination of the question of Fitzpatrick's competency in the actions instituted by them Dundon and Kin-ings are instituted to have one adjudged non solving abandoned their client and his cause and thereby waived their right to any compensation for services theretofore rendered; (4) that on February 11, 1914, shortly after the last trial in the county court, Fitzpatrick paid Kinsolving $150 in full for his services to that date, and that in no event could Kinsolving be entitled to recover for any services except for those thereafter rendered in the action for the writ of prohibition in the Court of Appeals, and in the first trial of the circuit court. mind, and that McKee could not bind himself or his estate for any sum for such purpose unless the services were necessary to properly conduct his resistance to the proceedings, the court further said: "It would not do to say that, where proceedcompos mentis, he cannot be made liable for the services of attorneys reasonably necessary to defend the proceeding. If that were the case, whenever such proceedings were instituted he would be deprived of means necessary to properly try the question involved. If he is adjudged of unsound mind, or to be a lunatic, it means from him, and perhaps the control of his person that the management of his estate is taken will be given to another. It is just and lawful that he should have the privilege of every reaings, and this he will not have if he cannot bind sonably available means to resist such proceedhimself or estate for reasonable attorney's fees to a necessary number of lawyers. Although Upon issues made and proof taken the he may be, in such proceedings, adjudged of unsound mind, and have been so at the time they chancellor gave Dundon and Kinsolving sepa- were instituted, still it would not follow that rate judgments for $1,500, subject in each reasonable compensation should not be paid atcase to a credit of $100. From those judg- torneys reasonably necessary to conduct his defense. If he were of unsound mind he could ments Tipton as committee prosecutes these not bind himself or estate for the services of appeals, and asks a reversal upon four attorneys, regardless of number and necessity grounds: (1) That neither petition stated a for their services. If he have attorneys reprecause of action; (2) that appellees' failure to those whom he so desires to assist cannot rensenting him, and desires others to assist, then obtain from the chancellor permission to file der services and compel his estate to pay them, their actions against the committee absolved unless such services were reasonably necessary the property of the incompetent from the pay-knows that, in proceedings to have one adjudgin the conduct of the defense. While the court ment of the fees claimed; (3) that appellees ed of unsound mind, he is entitled to have the abandoned Fitzpatrick and his case before its services of an attorney, for the reasonable comfinal determination, and thereby waived any pensation of which his estate is liable, still it and all rights for services theretofore ren- dered at the instance of the person of unsound cannot presume that, because they were rendered therein; and (4) as to the judgment mind, they were necessary." against Kinsolving, that he had been paid in full except possibly for services rendered in the prohibition suit in the Court of Appeals, and in the first trial in the circuit court. We will dispose of the questions in the order given. this observation: "A case might arise, where an unnecessary number of attorneys began their work at the same time, and under like circumstances, when it would be proper to make an allowance of a attorneys for defending an inquisition, and approper amount to cover a reasonable expense of portion it among the attorneys rendering the services." 1. The contention that neither petition states a cause of action is based upon a conclusion drawn from certain language of this court found in the opinion in McKee's Adm'r [1, 2] In view of the language last above V. Ward & Dickson, 38 S. W. 704, 18 Ky. quoted appellant contends that it was in solving to state the whole case in their petitions by showing that the services rendered by all the lawyers to Fitzpatrick in this proceeding were necessary for his defense, the value thereof, and the proportion to which the plaintiffs were entitled, and that since the petitions merely alleged that the plaintiffs' services were necessary to Fitzpatrick, and their value, they were subject to demur rer. Mrs. Freshour in obtaining her release from an infirmary to which she had been committed pursuant to an inquest. In sustaining the attorney's claim for his fee the court said: "It is the contention of the counsel for appellant that the claimant in this cause acted Freshour was incompetent to make any conwithout any authority whatsoever; that Mrs. tract; that it was claimant's duty to lay the facts before the probate court of Montcalm Of course, if a greater number of attorneys county and ask for leave to institute proceedings; and that, no such proceedings having were employed than was reasonably necessa- been taken by herself or the guardian of the inry to fully protect Fitzpatrick's interests, no competent person, he cannot recover. It is an recovery could be had for the excessive por- old and well-established rule of law that, when tion of the services, and it might be necessa- necessaries have been furnished to a person, it matters not whether the recipient is mentally ry in such a case, as was stated by the court competent or otherwise. If there is no express in McKee's Adm'r v. Ward, supra, for a sin- agreement to pay for the necessaries, an imgle allowance to be made for all the services plied agreement arises. The rule is stated in rendered and to apportion it among the at-4 Cyc. p. 993, as follows: The services of an attorney will usually be considered as necestorneys ratably. This rule necessarily saries, and a promise to pay for them will be grows out of the fact that, a person of un-implied, when rendered in a proceeding personal sound mind being unable to contract for him- to an infant or other person incapable of enterself, the court in representing the imcompe- ing into a contract, such as an habitual drunktent person will restrict the attorneys to necessary services and reasonable fees in order that the estate may not be squandered. Carter v. Beckwith, 128 N. Y. 312, 28 N. E. 582, and Hallett v. Oakes, 1 Cush. (Mass.) 296, are to the same effect. The rule is formulated as follows in 22 Cyc. 1181: ard or an insane man.' It is claimed in this cause that the attorney is not entitled to compensation because his efforts did not result to the benefit of Mrs. Freshour. We hold the But the error in the petition, if there was pensation for his services, whether those servrule to be that an attorney is entitled to coman error, was cured by the subsequent pro-ices have been beneficial to his client or not, ceedings by which the court, at the insist- so long as the services have been faithfully and ence of appellant, required all the attorneys intelligently performed." who had rendered services to Fitzpatrick to be made parties to this action. Two of them answered saying they had no claim, and Hobdy the remaining attorney having failed to answer after being duly summoned, it was adjudged that he was entitled to no compen"Reasonable counsel fees for services rendersation for his services. The result was thated the committee or guardian in defending and the services rendered by all the attorneys protecting the estate of his ward may properly who took any part in the litigation in behalf of Fitzpatrick were brought before the court, and the court necessarily had them in mind in rendering the judgments appealed from. The court had before it the whole case upon the subject of attorney's fees and allowed appellees only what it considered their proportion of a reasonable allowance for services that were necessary, ignoring the contracts that Fitzpatrick had made and notes he had given appellees for fees. It is apparent therefore that appellant could not have been prejudiced in the court's overruling the demurrers to the petitions. [3] There can be no doubt that an attorney may receive reasonable fees for reasonable and necessary services rendered an incompetent. It was so decided in McKee's Adm'r v. Ward & Dickson, supra, where the court said that, while an incompetent person is not liable upon his contract, he is liable for the reasonable value of reasonable and necessary services rendered for the protection of his person or property, and that attorneys' fees so rendered are necessaries. In re Freshour, 174 Mich. 114, 140 N. W. 517, 45 L. R. A. (N. S.) 67, Ann. Cas. 1915A, 726, runs on all fours with the McKee Case. In the Freshour Case, as here, an attorney sued to collect his fee for services rendered be allowed against the estate, and counsel fecs may also be allowed for services rendered directly to the lunatic in good faith and on reasonable grounds, as in opposing or attempting to supersede the inquisition of lunacy, or prosethe grounds of the detention of one restrained cuting habeas corpus proceedings to investigate as a lunatic. Costs incurred by the guardian or committee of a lunatic in good faith in the prosecution and defense of suits on behalf of the lunatic may be charged upon the lunatic's estate." And the rule permitting an attorney to recover compensation for his services rests upon the fact that they have been faithfully and intelligently performed, and not upon the fact that they have been successful or beneficial to the client. [4] Upon the question of the appellees' good faith in instituting these proceedings, it is sufficient to say that one-half of the local physicians who knew Fitzpatrick and examined him were of opinion that his senses had been restored; that in four trials the jury disagreed upon that subject; and that in the third trial in the county court the jury found that Fitzpatrick was restored to his senses. It was not until the sixth trial that the jury agreed that he was still incompetent. If any statement beyond that of the attorneys was necessary to show their good faith, we think these facts just mentioned fully sustain their contention in this respect. But the rule should not be pressed beyond [5] 2. It must therefore be conceded, un- the requirements necessary to accomplish its der the authority of these cases, especially purpose. If the end be accomplished by othunder the McKee Case, that each of the ap-er appropriate procedure, we see no merit in pellees had a cause of action. Are they to adhering to one particular method not rebe defeated by their failure to first obtain quired by statute. the chancellor's permission to enforce their claims? This defense was raised by special demurrer, and also by the fourth paragraph of the answer. In some jurisdictions the committee of a lunatic cannot be sued without leave of court first obtained; but we are not advised that it has ever been so held by this court. 22 Cyc. 1126. The contention that this action should have abated for plaintiffs' failure to first obtain permission to sue is based upon the general equitable doctrine that where a trust estate is in the custody of the chancellor for settlement or administration no one can interfere with its management without leave of the court. It is, for the time being, the custodian and guardian of his estate, and to permit the incompetent to expend his estate, or make it liable for his contracts would annul the court's supervisory power. This supervisory power is expressly given by section 2149 of the Kentucky Statutes, which provides in part, as follows: "The several circuit and county courts have power and jurisdiction within their respective counties of the care and custody of the persons and estates of all idiots, lunatics, those who, from confirmed bodily infirmity, are unable to make known to others by speech, sign or otherwise their thoughts or desires, and, by reason thereof, incompetent to manage their estates, and those whose minds, on account of any infirmity or weight of age, have become so imbecile or unsound as to render them incompetent to manage their estates." It is further shown, if not admitted, that Dundon and Kinsolving knew of the pendency of the committee's suit, and that Fitzpatrick's estate was thus in the hands of the court for administration at the time they accepted employment to render the services for which they now sue. This duty to obtain the approval of the chancellor is analogous to that imposed upon a guardian whose action, unauthorized in advance, will be subsequently approved if it be such that the chancellor would have given his approval in case it had been asked in advance. That was, in effect, the course taken in this case. These suits were not only instituted in the court in which the settlement was pending, but they were consolidated with the settlement suit and tried as a part of it. In that way the chancellor gave his full approval and consent, and tried the cases, thereby accomplishing everything that could have been accomplished in case the appellees had obtained his consent in advance. [6] 3. It is next insisted that Kinsolving abandoned Fitpatrick's case before the second trial in the circuit court, and that Dundon abandoned him after that trial. Kinsolving explains his retirement by saying that he received a letter signed by Fitzpatrick, or at his direction, discharging him from further service; while Dundon states that he retired after the second trial in the circuit court because of a disagreement between himself on one side, and Fitzpatrick and his son and Hobdy, the new lawyer who had been invited into the case from a distant point in the state, on the other side, as to the management of the case. It nowhere appears that Dundon or Kinsolving were asked to continue in the case; on the contrary, it appears that Hobdy superseded them, as heretofore stated, at the direction of Fitzof Dundon and Kinsolving was that they patrick. The legal effect of the employment were to be paid a reasonable fee for services rendered, not that they were to try the case It will readily be admitted that it is the willing duty of the chancellor to protect an incompetent person, both in the care of his person and his property, since it is the peculiar province of a court of chancery to protect those who are unable to protect themselves. Nailor v. Nailor, 4 Dana, 343; Upton v. Bush, 135 Ky. 102, 121 S. W. 1005; Harding v. Harding, 140 Ky. 277, 130 S. W. 1098, Ann. Cas. 1912B, 526. And, in affording full protection, it is unquestionably the duty of the chancellor, after the incompetent's estate has come under his supervision, to take all proper remedies to enforce that supervision. One proper measure is to require the approval of the chancellor before setting forth in any procedure that may require expenses, or be of doubtful expediency. This duty rests equally upon the committee This plea of part payment is based upon [7] 4. No complaint is made that the judgments are excessive. It is insisted, however, that Kinsolving was paid $150 by Fitzpatrick on February 11, 1914, in full of his services to that date, which would in any event leave him still entitled to compensation for his services in the prohibition suit in the Court of Appeals, and in the first circuit court trial. The circuit court ignored the plea. check alone. It will be remembered that this check was written by Kinsolving shortly after Fitzpatrick had been declared, in the third county court trial, to be of sound mind. Appar- | ently the possibility of an appeal to the circuit court was not in contemplation. When, therefore, Kinsolving wrote the check and accepted it "in full of account to date," it was not only a declaration against interest, but it was in effect a receipt. In 4 Chamberlayne's Modern Law of Evidence, §§ 2787 and 2788, it is said: "2787. Written declarations against interest may be in any form capable of conveying thought. They may consist of solemn and formal documents such as deeds. Mercantile papers, e. g., accounts or receipts, may also be the vehicle conveying a declaration against interest. The writings may even consist of casual papers such as loose memoranda. That the memorandum containing the declaration against interest is made by private marks the significance of which is known to the writer alone does not render it inadmissible. "2788. The rule admitting the declarations against the interest of the declarant extends in its scope not only so far as to receive them in proof of the facts directly asserted, but also of such incidentally stated facts as judicial administration may regard as fairly constituting part of the statement itself. Thus, a written receipt for money proves not only the fact that the money was received, but also the date at which it was done, the person from whom the money came or regarding the nature of the claim upon which payment was made. Any special circumstances regarding the transaction, e. g., the amount of rent which a tenant is under obligation to pay or the source of a title may be shown in the same way." With the receipt standing alone and unexplained it is possible to reach only one conclusion, to wit, that it means what it says and constitutes a payment in full of all services rendered Fitzptrick up to that date, leaving due Kinsolving only his compensation for subsequent services rendered in the prohibition application in the Court of Appeals, and in the first trial in the circuit court. [8] The rule in fixing the value of an attorney's services was stated in Morehead's Trustee v. Anderson, 125 Ky. 87, 100 S. W. 340, 30 Ky. Law Rep. 1137, as follows: "In estimating the amount of compensation to which an attorney is fairly entitled, in the. [absence of an express contract, and when the understanding is that his charge is to be reasonable, it is competent to consider the amount and time, and trouble involved, the nature and imcharacter of the service rendered, the labor, portance of the litigation or business in which the services were rendered, the amount of money or the value of the property affected by the controversy or involved in the employment, the skill and experience called for in the performance of the services, and the professional character and standing of the attorney. Am. & Eng. Ency. of Law, vol. 3, p. 420; Louisville Gas Co. v. Hargis. 33 S. W. 946, 17 Ky. Law Rep. 1190; Downing v. Major, 2 Dana (Ky.) 228." Moreover, an attorney's services are, in the end, to be intelligently examined by the court and their value largely fixed from the observation and experience of the judges themselves. Jordan v. Swift Iron & Steel Works, 14 Ky. Law Rep. 194; Germania Vault & Trust Co. v. Hargis, 64 S. W. 516, 23 Ky. Law Rep. 874; Morehead's Trustee V. Anderson, 125 Ky. 77, 100 S. W. 340, 30 Ky. Law Rep. 1137; Trimble & Bell v. Acme Mills Co., 151 Ky. 576, 152 S. W. 561; Adams Express Co. v. James, 164 Ky. 488, 175 S. W. 1012; Head v. Hargrave, 105 U. S. 45, 26 L. Ed. 1028. Kinsolving participated in five trials, and the chancellor valued those services at $1,500, being at the rate of $300 for each trial. There is, however, no testimony in the record which addressed itself to the value of these subsequent services as compared with the preceding services. But it is not contended, and we will not assume in the absence of proof, that any one of the five trials was more difficult or authorized a larger fee than the other trials; on the contrary, we feel impelled to conclude that the finding of the chancellor in this respect should be given a preponderant weight. We conclude, therefore, that Kinsolving's compensation for the services rendered in the prohibition case and in the first trial in the circuit court should be fixed at $600; and it is so ordered. Judgment affirmed in Dundon's case, and reversed in Kinsolving's case, with instructions to the circuit court to enter a judg ment awarding Kinsolving $600, as above indicated. CLARK v. FORD et al. (Court of Appeals of Kentucky. March 15, 1918.) 1. CHATTEL MORTGAGES 138(1)—RECORDING "PURCHASER FOR VALUE." In March, 1916, plaintiff sustained bodily injuries from an automobile operated by F., who was an employé in the service of a charitable society of which P. was promoter. P. had agreed to become F.'s surety on notes to be given for the automobile, provided the latter would execute to her a mortgage on the automobile. In April, 1916, she signed notes as surety, and F. executed a mortgage on the automobile to indemnify against loss by reason of the suretyship. The mortgage was executed without intent to defraud creditors, but was nev For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes er recorded. Plaintiff, knowing of the mort- | issuance of the execution and the return of gage, brought suit in July, 1916, and recovered nulla bona, and that the appellee Ford was judgment against F. Later the present action was brought against F. and P. to enforce col- the owner and in the possession of a Dodge lection of the judgment against F., in which automobile, exceeding in value the amount of an attachment was levied on the automobile. appellant's judgment and costs, upon which Held, that plaintiff was not a subsequent "pur; she has executed to the appellee Mrs. Palmer chaser for value" of the automobile who could take advantage of the fact that the mortgage a mortgage which had never been put to record. It was further alleged in the petition that this mortgage was pretendedly executed to indemnify Mrs. Palmer as surety upon certain notes which Mrs. Ford claimed to was not recorded. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Purchaser for Value.] 2. CHATTEL MORTGAGES 138(1) SUBSEQUENT JUDGMENT CREDITOR-LIEN-PRIOR ITY. In such case, the lien of the mortgagee was superior to the equity subsequently acquired by plaintiff through levy of her attachment. 3. CHATTEL MORTGAGES 47-DESCRIPTION OF PROPERTY-DEBT SECURED-SUFFICIENCY. A mortgage stating that it was given to secure the mortgagee against loss because of her signature on notes bankable which were given to D. Motor Company for a 1916 Dodge car sufficiently identified the automobile and the notes. Appeal from Circuit Court, McCracken County. Action by O. A. Clark against Margaret Ford and another, to enforce collection of a judgment against defendant named. From the judgment rendered, plaintiff appeals. firmed. have executed to the vendor of the Dodge automobile, but was, in fact, executed to prevent the collection of appellant's judgment, and with the intent to defraud her and other creditors of the appellee Ford, as well as to prefer Mrs. Palmer to the exclusion of appellant and other creditors of Mrs. Ford. The petition also alleged the necessary grounds for an attachment, and prayed that a specific attachment be issued, which was done, and the attachment levied upon the auserved upon Mrs. Ford and one or two other tomobile in question and copies thereof appellee Mrs. Palmer filed a separate answer persons alleged to be indebted to her. The to the petition, traversing its allegations, Af- 1916, Mrs. Ford, who was then and now an and, in addition, alleging that on April 15, employé in the service of a charitable society in the city of Paducah, of which Mrs. Palmer is a promoter, finding the use of an automobile necessary in the work required of her, purchased of the Dubois-Ashcraft Motor Company the Dodge car mentioned at the Campbell & Campbell, of Paducah, for appellant. W. A. Berry, of Paducah, for appellees. SETTLE, C. J. In March, 1916, the appellant, Mrs. O. A. Clark, sustained bodily in-price of $815, for which she gave her several juries in a collision with an automobile operated by the appellee Mrs. Margaret Ford. July 14, 1916, appellant brought suit against Mrs. Ford in the McCracken circuit court, seeking the recovery of damages for the injuries caused by the latter's automobile; it being alleged in the petition that they resulted from Mrs. Ford's negligent manner of operating the automobile. The answer of the appellee Ford denied the negligence charged in the petition and alleged contributory negligence on the part of appellant, which was denied by the latter's reply. The trial, which occurred November 6, 1916, resulted in a verdict and judgment awarding appellant $500 damages. January 22, 1917, appellant caused an execution to be issued for the amount of the judgment and costs of the action, directed to the sheriff of McCracken county, who returned it January 30, 1917, indorsed, "No property found." February 7, 1917, this action was instituted in the McCracken circuit court by the appellant, Clark, against the appellees Margaret Ford and Mrs. Elbridge Palmer, to enforce the collection of the judgment in her favor against the former. The petition, in substance, alleged the recovery by appellant of the judgment for damages against Mrs. Ford in the previous action, the notes of $40 each, payable monthly and all bearing interest at 6 per cent. from date; that upon Mrs. Ford's advising with Mrs. Palmer as to the purchase of this automobile the latter had, at Mrs. Ford's request, agreed to become her surety upon the several notes referred to, provided Mrs. Ford would execute to her a mortgage upon the automobile to indemnify her against loss by reason of such suretyship; that when on April 15, 1916, she (Mrs. Palmer) signed the notes as surety for Mrs. Ford, the latter had not then executed the mortgage as theretofore agreed between them, but promised to do so as soon as she could get it written by her attorney, which promise was complied with by the delivery of the mortgage a few days later to Mrs. Palmer. Furthermore, that on the 6th day of November, and before the beginning of the trial of the action for damages brought by appellant against Mrs. Ford, which occurred on that day, they (Mrs. Ford and Mrs. Palmer), acting upon the advice of their counsel, who had no knowledge of the previous mortgage executed as of April 15, 1916, by Mrs. Ford to Mrs. Palmer, had him to prepare another mortgage from the former to the latter, which he at once did, and this mortgage was duly acknowledged before a |
