Opinion
No. 42300.
July 9, 1951. Motion for Rehearing or to Transfer to Banc Overruled, September 10, 1951.
Although appellants' brief does not comply with the rules, a motion to dismiss is overruled. Defendant attorneys obtained a judgment against their former client. After his death his successors sued to set the judgment aside. The trial court found that the judgment had been obtained by legal fraud and ordered it set aside, but subject to the condition that plaintiffs file a quitclaim deed covering a one-third interest in the proceeds of a certain settlement made by defendants' former client in violation of a contingent fee contract with defendants. When plaintiffs refused to comply with the conditions of the decree, their petition was properly dismissed with prejudice.
1. APPEAL AND ERROR: Insufficient Brief: Motion to Dismiss Overruled. Although the abstract statements of law in appellants' brief do not constitute the points relied on required by Rule 1.08 (a) (3), this is an equity suit which the Supreme Court is required to try anew upon the record. The motion to dismiss will be overruled.
2. JUDGMENTS: Equity: Attorney and Client: Prior Judgment Obtained by Legal Fraud: Conditional Decree Setting Aside Judgment: Refusal to Comply with Condition: Action Properly Dismissed With Prejudice. The trial court found that defendant attorneys had obtained a judgment against their former client by legal fraud in that they had failed to disclose certain deeds and a contract with opposing counsel. But the trial court properly made the decree setting aside the judgment conditional upon plaintiffs, the successors of the deceased client, depositing a quitclaim deed for a one-third interest in whatever had been obtained in a settlement made by the client in violation of a contingent fee contract with defendants. When plaintiffs refused to comply with the terms of the decree, the trial court properly dismissed the action with prejudice.
Appeal from Circuit Court of City of St. Louis; Hon. William K. Koerner, Judge.
AFFIRMED.
Frank Mashak for appellants.
(1) Fiduciary relation exists as a matter of law between attorney and client. Dealings between them are presumptively fraudulent, and burden is on attorney to show good faith and fair dealing. Gardine v. Cottey, 230 S.W.2d 731; Bybee v. S'Renco, 316 Mo. 517; Morton v. Forsee, 249 Mo. 409. (2) Contingent claim is one where the liability depends upon some future event, which may or may not happen, and therefore makes it now wholly uncertain whether there will ever be a liability. The contingency does not relate to the amount which may be recovered, but to the uncertainly that any amount will ever be recovered. Howard's Estate v. Howe, 131 S.W.2d 517; 6 C.J. 745, sec. 321. (3) The burden of proof rests on the party having the affirmative of an issue, and that burden never shifts. Griffith v. Continental Casualty Co., 229 Mo. 426, 253 S.W. 1043; Stofer v. Dunham, 208 S.W. 641. (4) A client may compromise or settle his case with or without the consent of his lawyers and the amount of the fee will be liquidated by such settlement. A cause of action is not the property of the attorney, but of the client. The attorney owns no part of it for a lien does not give a right, but a charge upon it. Belch v. Schott, 171 Mo. App. 357; Curtis v. Metropolitan Ry. Co., 118 Mo. App. 341, 94 S.W. 762; 6 C.J. 745, sec. 321. (5) The amount due under a contingent fee contract is a question of fact for the jury. Ryan v. Burrow, 326 Mo. 896, 33 S.W.2d 928; Rosenberg v. Steiner, 228 S.W.2d 807. (6) If land involved in litigation is within jurisdiction of court, trial court can impress a lien for attorneys' fees, either under statute or common law. Young v. Levine, 326 Mo. 593, 31 S.W.2d 978. (7) Where there is an adequate and complete remedy at law, a court of equity will not interpose. Equity can be resorted to only after legal remedies have been exhausted, and some equitable right violated. Krummenacher v. Western Auto Supply Co., 217 S.W.2d 473; Janney v. Speeden, 38 Mo. 395; Alnutt v. Leper, 48 Mo. 319; Hibbs v. McGee, 328 Mo. 1176, 44 S.W.2d 36. (8) Distinction between law and equity has not been abolished in Missouri and the rule is the same as in states having chancery courts. Liese v. Meyer, 143 Mo. 547, 45 S.W. 282. (9) A judgment may be set aside where it is shown fraud was practiced on the court in its procurement, and that there was a valid meritorious defense, although it need not be shown conclusively there was a sufficient defense, so long as good faith and a serious litigable issue is presented. Hockenberry v. Cooper County Bank, 338 Mo. 31, 88 S.W.2d 1031; Fears v. Riley, 148 Mo. 49, 49 S.W. 836; Howard v. Scott, 225 Mo. 685, 125 S.W. 1158; Jones v. Arnold, 221 S.W.2d 187; Sutter v. Easterly, 189 S.W.2d 284; Winchell v. Gaskill, 190 S.W.2d 266; Boeckmann v. Smith, 189 S.W.2d 449; 1 Black on Judgments, pp. 295-321. (10) Fraud may be shown by circumstantial evidence. If this were not so, fraud, because of its secretive nature, could rarely be shown. Mueller v. Brooke, 189 S.W.2d 113. (11) The original petition is abandoned when an amended petition is filed. Spotts v. Spotts, 55 S.W.2d 977; Von Eime v. Fuchs, 8 S.W.2d 824; Forrister v. Sullivan, 132 S.W. 722; Ticknor v. Voorhies, 46 Mo. 110; Rand v. Grubbs, 26 Mo. App. 595. (12) Judgment obtained by fraudulent appearance of attorney will be set aside. Robb v. Voss, 155 U.S. 13, 39 L.Ed. 52, 15 S.Ct. 4; Johnson v. Baumhoff, 322 Mo. 1017, 18 S.W.2d 13. (13) The provisions of Sections 1 and 4 of the Soldiers' Sailors' Civil Relief Act are mandatory. 50 U.S.C.A. Appendix, Sec. 520; In re Realty Associates Securities Corp., 53 F. Supp. 1015. (14) Conduct of attorneys which violates ethics and public policy will be taken cognizance of by this court. Curry v. Dahlberg, 112 S.W.2d 345; In re Conrad, 340 Mo. 582, 105 S.W.2d 1; In re Thomason's Estate, 196 S.W.2d 155; Laughlin v. Boatmen's Natl. Bank of St. Louis, 163 S.W.2d 761. (15) Propriety of attorney taking client's property in his own name. Demmel v. Hammett, 230 S.W.2d 686. (16) An attorney, by virtue of his general authority to conduct a suit, cannot bind his client by contract to compromise or settle the cause of action, unless some authority has been given by the client or ratified by him. Walden v. Bolton, 55 Mo. 405; Black v. Rogers, 75 Mo. 441; Shank v. St. Louis-S.F. Ry. Co., 11 S.W.2d 1063; Kahn v. Brunswick-Collender Co., 156 S.W.2d 40; N. Missouri Ry. Co. v. Stephens, 36 Mo. 150; U.S. v. Beebe, 180 U.S. 343, 45 L.Ed. 563, 21 S.Ct. 371; 5 Am. Jur., p. 318, sec. 98. (17) Appellant's suit against Ellen Jensen and Milton F. Napier reported. Milanko v. Jensen Napier, 404 Ill. 261. (18) Fraud in procuring judgment vitiates whole proceeding and entitles judgment debtor to equitable relief by vacation of judgment. Jones v. Arnold, 221 S.W.2d 187; Overton v. Overton, 327 Mo. 350; Bresnehn v. Price, 57 Mo. 422; Murphy v. DeFrance, 101 Mo. 151; Lieber v. Lieber, 239 Mo. 1; Fadler v. Gabbert, 63 S.W.2d 121; Sutter v. Easterly, 189 S.W.2d 284; State ex rel. v. Church, 158 S.W.2d 215; Kansas City v. Woerishoeffer, 249 Mo. 1, 155 S.W. 779; Howard v. Scott, 255 Mo. 685, 125 S.W. 1158; United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93; Stoddard v. Chambers, 43 U.S. 284, 2 How. 284, 11 L.Ed. 269. (19) Appellate court will review both law and evidence in case tried before court without a jury and enter judgment trial court should have entered. Laws 1943, p. 388, sec. 114 (d); Strohm v. Boden, 222 S.W.2d 772; Gardine v. Cottey, 230 S.W.2d 731. (20) Estoppel of judgment vanishes when fraud appears in obtaining it. Lewis v. McCabe, 76 Mo. 296. (21) A court of equity is a court of conscience. Hetzler v. Millard, 348 Mo. 198, 153 S.W.2d 355.
John H. Lashly and Lashly, Lashly Miller for respondent Richard A. Austin; Stephen A. Boggiano and Boggiano Hessel for respondent Lulu Young, Duly Appointed, Qualified and Acting Executrix of Last Will and Testament of Taylor R. Young, Deceased.
(1) Appellants have not complied with Rule 1.08 (9) (3) of this court requiring appellants to specify the allegations of error upon which they rely for reversal of the judgment appealed from and therefore, the judgment appealed from should be affirmed. (2) The appellate court will affirm the judgment appealed from where it is sustainable on any legal ground or theory apparent on the record, even though such ground or theory differs from that stated by the trial court to be the basis of its ruling or action. American Constitution Fire Assur. Co. v. O'Malley, 342 Mo. 139, 113 S.W.2d 795; Beckman v. Kinder, 237 Mo. App. 58, 165 S.W.2d 311; DeVoto v. DeVoto, 323 Mo. 716, 19 S.W.2d 622; Gibson v. Davis, 117 S.W.2d 388; Kraemer v. Shelley, 358 Mo. 364, 214 S.W.2d 525; Missouri Electric Power Co. v. City of Mountain Grove, 325 Mo. 262, 176 S.W.2d 612. (3) Where, as here, the whole record is carried up on appeal respondent is permitted to present and urge exceptions taken by him below for the purpose of sustaining his judgment, or of demonstrating that appellant is not entitled to the relief he seeks at the hands of the appellate court. St. Charles Sav. Bank v. Denker, 275 Mo. 607, 205 S.W. 208; Russell v. Union Electric Co. of Mo., 238 Mo. App. 1074, 191 S.W.2d 278; Jacoby v. New York Life Ins. Co., 229 Mo. App. 333, 77 S.W.2d 840; O'Connell v. Dockery, 102 S.W.2d 748; Crabtree v. Bankers Life Ins. Co., 233 Mo. App. 1067, 128 S.W.2d 1089. (4) The burden of proof was upon the appellants seeking relief against a judgment on the ground of fraud to prove the alleged fraud by evidence so clear, strong and cogent as to leave no room for reasonable doubt of its existence. Every presumption is to be presumed in favor of the integrity of the judgment. Terminal Railroad Assn. of St. Louis v. Schmidt, 349 Mo. 890, 163 S.W.2d 772; Sutter v. Cavalier, 185 S.W.2d 304; Johnson v. Stebbins-Thompson Realty Co., 167 Mo. 325, 66 S.W. 933. (5) The trial court did not err in dismissing appellants' petition for failure of appellants to do equity. He who seeks relief in equity against a judgment must do equity; and it is competent and proper for the court to impose such terms on him, or require him to submit to such orders or conditions as may be necessary to adjust the rights of all parties in accordance with equity. Stephenson v. Stephenson, 351 Mo. 8, 171 S.W.2d 565; Walsh v. Walsh, 285 Mo. 181, 226 S.W. 236; Gersberg v. O'Laughlin, 88 Minn. 431, 93 N.W. 310; 3 Freeman on Judgments, (5th Ed.), p. 2476; 31 Am. Jur., pp. 247, 263; 49 C.J.S., p. 790; Abdellah v. Hodge, 55 N.D. 392, 213 N.W. 495; Schneider v. Lobinger, 82 Neb. 174, 117 N.W. 473. (6) The trial court's action in dismissing appellants' petition or bill is sustainable on the further ground that appellants have not come into equity with "Clean Hands." Moore v. Carter, 356 Mo. 351, 201 S.W.2d 923; Hyde Park Amusement Co. v. Megler, 358 Mo. 336, 214 S.W.2d 541; Smith v. Apple, 6 F.2d 559; American Life Ins. Co. v. Lucas, 38 F. Supp. 896; Abernathy v. Hampe, 53 S.W.2d 1090; General Excavator Co. v. Keystone Driller Co., 62 F.2d 48. (7) The parties to a pending suit may make an agreement as to the mode or manner of satisfying a judgment to be thereafter recovered in such a suit and no fraud is perpetrated on the court by not disclosing such an agreement to the court in the pending suit. Zorn v. Lowery, 236 Ala. 62, 181 So. 249; Grant v. Reeves, 195 Okla. 414, 158 P.2d 479; Marsters v. Ashton, 165 Or. 507, 107 P.2d 981; Kranke v. American Fabrics Co., 151 A. 312; 40 C.J.S., pp. 1022, 1940. (8) In order to have a judgment set aside on the alleged ground that it was procured by fraud, all of the essential elements of actionable fraud must be shown, that is, the alleged wrongful act constituting the basis of the fraud charged must have been intentional and done with knowledge that it was wrong. Mere error of fact or law does not constitute fraud. Equity will not grant relief against a judgment for "legal" or "constructive" fraud. Burke v. Northern Pac. R. Co., 86 Wn. 37, 149 P. 335; Farrell v. Farrell, 243 Ala. 389, 10 So.2d 153; Grigg v. Hanna, 283 Mich. 443, 278 N.W. 125; Gundelfinger v. Mariposa Commercial Min. Co., 72 Cal.App.2d 540, 165 P.2d 57; Rivers v. Alsup, 188 Ga. 75, 2 S.E.2d 632; Bullivant v. Greer, 216 Mo. App. 324, 264 S.W. 95; Phoenix Finance Corp. v. Iowa-Wisconsin Bridge Co., 115 F.2d 1; Caudill v. Caudill, 39 N.M. 248, 44 P.2d 724; In re Baker's Estate, 135 Me. 277, 195 A. 202.
This is a suit in equity to set aside a judgment entered on March 22, 1943 against Hubert A. Reddish on the ground of fraud upon the court in its procurement. Hubert A. Reddish died on July 14, 1944 and the plaintiffs are his administrator and his mother, Elizabeth Reddish Milanko, the principal beneficiary under his will. The defendants are Richard A. Austin and the executrix of the estate of Taylor R. Young. Young and Austin, lawyers, were plaintiffs and Hubert A. Reddish was the defendant in the action which resulted in the judgment of March 22, 1943. In an interlocutory order the trial court found that Young [882] and Austin in obtaining the judgment failed to call certain matters, particularly a contract which the court thought would have been a valid defense to their action, to the court's attention and that their conduct "constituted a legal fraud upon the court." The court found, however, that Young and Austin were entitled to a one-third interest in whatever Hubert A. Reddish had obtained in settlement of litigation in Illinois and expressly conditioned the granting of the relief prayed for by the plaintiffs — the setting aside of the judgment — upon the plaintiffs likewise "doing equity," by depositing in escrow with the clerk of the court a quitclaim deed conveying to Young and Austin a one-third interest in whatever property Hubert A. Reddish acquired in settlement of the Illinois litigation. The plaintiffs refused to comply with the condition imposed by the court's interlocutory order and because of their refusal the court dismissed the plaintiffs' petition with prejudice and the plaintiffs appeal from that final judgment.
At the outset we are confronted with the respondents' motion to dismiss the appeal or affirm the judgment for the reason that the appellants in disregard of Rule 1.08(a) (3) have failed to specify in their brief or in the points relied on the allegations of error upon which they rely for a reversal of the judgment. The plaintiffs' "Statement Of Errors And Points And Authorities In Support Thereof" consists of a series of abstract statements of law followed by the citation of cases and it is not demonstrated in what manner they are concerned with this case and they do not by any means "specify the allegations of error." Kleinschmidt v. Globe-Democrat Publishing Company, 350 Mo. 250, 165 S.W.2d 620. This, however, is an equity suit (Beil v. Gaertner, 355 Mo. 617, 626, 197 S.W.2d 611) which this court is required to try anew upon the record (Gardine v. Cottey, 360 Mo. 681, 230 S.W.2d 731) and since, as we view the appeal, there is but a single obvious question in the case the motion is overruled. It is the position of the appellants, since the trial court found "legal fraud" in the procurement of the judgment, that the judgment should have been set aside without reservation or restriction. It is obviously their position that the trial court, in the circumstances, abused its discretion, or had no authority, to condition relief upon the plaintiffs' performance of certain acts which the court deemed necessary and appropriate to complete equitable relief.
As briefly as possible, the facts concerning the judgment sought to be set aside and the facts upon this appeal are these: Stephen M. Reddish died in April 1919 owning 1885 acres of land in Jersey County, Illinois. He devised the land in trust, according to a decree of the Circuit Court of Jersey County, for the benefit of his wife and two sons, Horace and Clarence, and their three children, Hubert, son of Horace, and Paul and Ruth, children of Clarence. After the death of Stephen's wife in 1920 and after the death of Horace in 1938 Hubert claimed, under his grandfather's will, an undivided one half interest in the property and his Uncle Clarence denied that he had any interest. One of the questions was whether Hubert's interest was a vested or a contingent remainder. Uncle Clarence had administered the trust property since his father's death in 1919 and, among other things, had secured the permission of a circuit court to mortgage the property for $42,184.37 to secure sums Clarence had borrowed and expended on the trust property. On February 16, 1938 Hubert A. Reddish entered into a written contract with Young and Austin to represent him in his litigation in Illinois. Among other things, the contract provided that "I further agree to pay the said attorneys, as compensation for their services rendered, and to be rendered, an amount equal to thirty-three and a third percent (33-1/3%) of any amount or of any property realized, collected or secured, either by compromise or by suit." Hubert Reddish was improvident, unreliable and addicted to the excessive use of alcohol, as several courts have found and as Young and Austin alleged on occasion. On February 24th, 1938 Hubert executed a mortgage on a one half interest in his grandfather's land in Illinois to secure Young's and Austin's fee. In April 1938 Young and Austin instituted an action in [883] the United States District Court in Illinois on behalf of Hubert against his Uncle Clarence and all others who might have an interest in the grandfather's land. The general object of the suit was to define Hubert's interest in the land, to partition the land, to challenge the $42,184.37 mortgage and to secure an accounting. The defendants in that action moved to dismiss the petition for lack of jurisdiction but the United States District Court overruled the motion and in a memorandum opinion gave some clue as to the court's tentative view of at least some phases of the litigation. Thereafter, on January 14th, 1939, Hubert, without the knowledge or consent of his attorneys, Young and Austin, went to Illinois and settled his lawsuit. He entered into a written contract with his Uncle Clarence and Clarence's two children. It is not necessary to set out the terms of the contract but it should be objectively noted in passing that as a legal document it is an incomparable masterpiece. The contract construed the will, confirmed the previous conduct of the trustee, continued the trust, provided for certain cash payments to Hubert and provided that a consent decree should be entered in the United States District Court "in conformity with and for the purpose of effectuating and carrying out the provisions of this agreement." Subsequently Austin filed a motion in the United States District Court for the appointment of a next friend or guardian for Hubert in which he set forth Hubert's settlement with his uncle, that he was incompetent and that the settlement was fraudulent. The District Court found that Hubert understood the agreement and that it was not fraudulently procured and dismissed the amended complaint "as having been fully compromised, settled and adjusted."
In August 1940 Young and Austin instituted an action in the Circuit Court of the City of St. Louis against Hubert Reddish. Their petition set forth, in a general way, the facts up to the filing of the suit, the fact of their fee contract and Hubert's mortgage to secure the fee. They asked that the contract and mortgage be validated, that Hubert's compromise agreement with his uncle be declared invalid, that he be prevented from further aiding the defendants in the Illinois suit and for a personal judgment against Hubert for $30,000. The action was continued from time to time, a default judgment was taken and then set aside, counsel appeared for Hubert and then withdrew and finally the cause was set for trial on February 16, 1942. In the meantime, from January 7, 1942 to June 26, 1943, Hubert was in the military service of the United States. On February 16, 1942 Young and Austin filed an amended petition and, according to the record and the court's minutes, the defendant filed an answer, a general denial signed by the attorney then representing him, Milton F. Napier, and the cause was heard by the court. Young and Austin testified to the contract, the mortgage, their employment and services. The testimony was taken by a court reporter who several years afterwards was unable to accurately transcribe his notes. Because the trial court would not accept several proposed decrees final judgment was not entered until March 22, 1943. The decree finally entered covers thirty-one pages but the substance of it is that a personal judgment was rendered against Hubert for $30,000, the contract and mortgage between Young and Austin and Hubert were declared to be valid and binding and the compromise agreement between Hubert and his uncle was declared to be invalid. This is the judgment that Hubert's mother and administrator seek to set aside in this action on the ground of fraud upon the court in its procurement.
Mrs. Milanko and the administrator rely upon the fact that Hubert was in the military service of the United States and that the Soldiers' and Sailors' Civil Relief Act was not complied with. They claim that Mr. Napier had no authority to appear for Hubert or to file an answer. But the essential facts which the trial court found had been concealed from the court when the judgment of March 22, 1943 was rendered were these: On July 12, 1941, after the settlement in January 1939, Hubert Reddish executed a quitclaim deed by which he conveyed all his interest in his grandfather's property in Illinois to Mr. Napier's secretary. [884] That deed was recorded in Illinois on November 24th, 1941. On the same day Mr. Napier's secretary quitclaimed a one half interest in the property to Hubert and the other one half interest in the property to Mr. Napier. Those deeds, incidentally, have been set aside and declared invalid by the Illinois courts. Milanko v. Jensen, (1949) 404 Ill. 261, 88 N.E.2d 857. In any event, on the 16th day of September 1941 Napier, as party of the first part, and Young and Austin, as parties of the second part, entered into a written contract which recites the fact of Stephen Reddish's death in 1919, his will, that under the will "the predecessor in title (Hubert) of the Party of the First Part (Napier) was entitled under said will to an undivided one-half interest in and to all of said lands" and had employed Young and Austin to recover the land for him and had given them a mortgage to secure their fee of $30,000 and "Whereas the Party of the First Part has acquired all the right, title and interest of Hubert A. Reddish in and to the foregoing mentioned described real estate, and all of the parties hereto are desirous of obtaining all that can be obtained by litigation which is necessary to fix the rights of the parties hereto in the Courts of Illinois, and in anticipation of such litigation and in order to avoid any complications or litigation between the parties hereto" it was agreed that Young and Austin should prosecute their suit against Hubert to judgment, foreclose their mortgage and that "the proceeds derived from said foreclosure shall be divided as follows, to-wit: One-third to the Parties of the Second Part (Young and Austin); Two-thirds to the Party of the First Part (Napier)." Mr. Napier testified that he held the quitclaim deed in trust for the protection of and to secure Hubert's interest in the property. In any event when the evidence was given on February 16, 1942 upon which the judgment of March 22d 1943 was rendered neither Mr. Napier nor Young nor Austin called the court's attention to the two quitclaim deeds or to their contract with Napier. It was the trial court's view in this case that the contract between Young and Austin and Napier, had it been called to the court's attention, would have been a good defense to their claim to a personal judgment against Hubert and that failure to reveal to the court the existence of the quitclaim deeds and the contract constituted a legal fraud upon the court and entitled the plaintiffs to have the judgment set aside. As we have said, however, the court was also of the opinion that the plaintiffs should likewise do equity and conditioned the setting aside of the judgment upon the plaintiffs conveying to Young and Austin one third of whatever interest Hubert acquired by the Illinois settlement of January 14, 1939.
Mrs. Milanko and Hubert's administrator have briefed and argued numerous questions concerning the conduct of lawyers, fraud and whatnot but all these arguments are entirely beside the point. Mr. Napier is not a party to this suit and his deed has been set aside by the Illinois courts. The trial court found "legal fraud" in the procurement of the judgment and proposed, by its interlocutory decree, to set the judgment aside provided, however, that the appellants comply with certain conditions which the court deemed appropriate and necessary to complete equitable relief, and the sole question upon this appeal is whether the trial court had the power to so condition its relief and if so whether the court abused its discretion in imposing the conditions.
For a long time, as a corollary of the auxiliary maxim that he who seeks equity must do equity, courts of equity have granted relief upon such conditions as are just and proper and demanded by the exigencies of the circumstances. Haydon v. St. Louis-S.F.R. Co., 222 Mo. 126, 121 S.W. 15; Gibson v. Shull, 251 Mo. 480, 158 S.W. 322; Jones v. McGonigle, 327 Mo. 457, 37 S.W. (2) 892; Rains v. Moulder, 338 Mo. 275, 90 S.W.2d 81; Restatement, Judgments, Sec. 130, p. 628; 30 C.J.S., Sec. 602, p. 993; 19 Am. Jur., Sec. 22, p. 51. "The true meaning of the rule whose frequency of invocation would seemingly argue a better knowledge of its import, that `he who seeks equity, must do equity' is simply this: that where a complainant comes before a court of conscience invoking its aid, such aid will not be granted [885] except upon equitable terms. These terms will be imposed `as the price of the decree it gives him.'" Whelan v. Reilly, 61 Mo. 565, 569-570. More recently the court said, "Certainly no court of equity would grant equitable relief to a party who, on his own part, refused to perform equitably. The enforcement of the principle of equity — he who seeks equity must do equity — is not dependent upon any form of pleading, but its application is in the conditions and provisions of the decree of the court whereby equitable terms are imposed as a condition precedent to the equitable relief granted." Stephenson v. Stephenson, 351 Mo. 8, 17, 171 S.W.2d 565, 569. In Phillips v. Phillips, 50 Mo. 603, the trial court quieted the title to certain land in the plaintiff but this court, upon its own initiative, conditioned the relief to the plaintiff for the benefit of an infant defendant by imposing conditions similar to those imposed by the trial court in this case. "If the plaintiff shall be willing to protect the rights and interest of his sister's child, we think he is entitled to relief, and the court below should give him judgment upon his making a satisfactory provision for such minor, either by an independent instrument or in the judgment; and if he declines to make such provision he should not be aided in perfecting his title." The rule has been applied and conditions have been imposed in suits to set aside judgments (2 Pomeroy, Equity Jurisprudence, Sec. 393c; 3 Freeman, Judgments, Sec. 1193, p. 2476) especially when, as here, there is an offer to do equity and a prayer by the plaintiffs for general equitable relief and the issue is within the pleadings and inherent in the circumstances. Compare: Howard v. Scott, 225 Mo. 685, 125 S.W. 1158. However, the rule does not necessarily depend upon the plaintiffs offering to do equity and it does not "require," in the sense of "compel," that the plaintiffs execute and deliver a quitclaim deed. The rule, as correctly applied by the trial court, calls for the granting of the requested relief only after performance by the plaintiffs of the equitable condition imposed by the court. The plaintiffs had their choice whether they would perform the condition which was the price to be paid for the requested equitable relief.
The court had the power to condition its relief to the plaintiffs and the question is whether the court abused its discretion in this instance in so doing. "The rule `decides nothing in itself," for you must first inquire what are the equities which the plaintiff must do in order to entitle him to the relief he seeks." Whelan v. Reilly, supra. As between the parties, the plaintiffs' predecessor in title, Hubert, on the one hand and the respondents on the other hand, just what are the equities of the situation? It is not necessary to again set forth the facts and characterize the conduct of the parties; the facts speak for themselves. The trial court has found that there was "legal fraud" in connection with the procurement of respondents' judgment. Hubert was indeed a trying client and the respondents performed meritorious services for him. It was due to their labors that he was able to effectuate any kind of a settlement, even one behind their backs and in repudiation of his contract with them. At one time a vested one half interest in his grandfather's estate was worth about $90,000. It does not now appear just what he received in the settlement or its value but whatever it was he and his successors are justly indebted to the respondents and the trial court did not abuse its discretion in conditioning its relief accordingly. Geisberg v. O'Laughlin, 88 Minn. 431, 93 N.W. 310; Overton v. Stevens, 8 Mo. 622. Upon the plaintiffs' refusal to comply with the condition which was reasonable and proper under the circumstances the trial court properly dismissed the plaintiffs' petition.
Accordingly the judgment is affirmed. Westhues and Bohling, CC., concur.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the court. All the judges concur.