Opinion
No. 4161.
Decided January 6, 1953.
Where an agreement providing for an appraisal of the fair market value of certain real estate involved in litigation contained no provision for notice or hearing, neither party is entitled thereto as a matter of law. The appraiser of such property was not required in determining the fair market value to take into consideration the fact that one of the co-owners was a missing person where no such provision was contained in the settlement agreement and the fact that he was missing was known by all parties. Where counsel failed to abide by an agreement filed in court and signed by himself individually and as counsel for certain parties disposing of pending litigation, the Trial Court was justified in ordering him to perform specifically.
MOTION FOR SUPPLEMENTARY ORDER, requiring Joseph Moore individually and as attorney for the plaintiffs and/or the said plaintiffs to pay the defendant the sum of $875 with interest and costs in performance of an agreement executed by counsel to settle "a bill in equity to quiet title in partition" of a certain tract of land in Enfield. The factual background of the controversy can be found in Moore v. Hill, 97 N.H. 40, 41.
The material portions of the agreement as filed in Superior Court follow.
"The parties to the above entitled action agree to settle this litigation upon the following terms:
"1. The Bill in Equity No. 5438, Walter J. Moore and Grace Blanchette vs. Leone Eastman . . . shall be dismissed without costs to either party. . . .
"4. Leone Eastman agrees to convey to Joseph Moore, or his nominee, all her right, title and interest in and to the real property held by the parties in co-tenancy including the real estate in Enfield and the real estate in Canaan, upon the payment to her by said Moore of one-fourth of the present fair market value of said real estate determined as hereinafter provided.
"5. If the parties are unable to agree upon the present fair market value of the property within ten days from the date hereof, it is agreed that William J. Murphy, real estate broker of Lebanon, shall act as appraiser and shall submit a copy of his appraisal of the fair market value of the Enfield and Canaan real estate to attorneys for both parties. Joseph Moore agrees to pay to said Leone Eastman one-fourth of the appraised value thus arrived at in exchange for her deed in the event that it is necessary to proceed to an appraisal."
The parties agreed on the value of the Canaan property but not on that of the Enfield tract. The fair market value of the latter was fixed by the above named appraiser at $3,500. The plaintiffs and their attorney refused to pay one quarter of said amount.
They seek to justify their failure to perform mainly on the ground that "the alleged appraisal was not made after notice, after hearing, impartially, nor on the basis of a quitclaim conveyance as per contract."
The Court (Leahy, J.) found "that the agreement . . . entered into between Joseph Moore and counsel for the defendant was entered into by said Moore with full knowledge of the situation concerning a missing party. The expense attached to a partition proceeding in order to sell the property involved is negligible and any cloud on the title could be removed. The agreement is upheld and said Joseph Moore ordered to perform specifically . . . error is found in the appraisal." Plaintiffs' bill of exceptions thereto was allowed and transferred.
Joseph Moore (by brief and orally), for the plaintiffs.
John F. Cronin and Richard F. Upton (Mr. Upton orally), for the defendant.
The objection of plaintiffs' counsel that the appraisal was not made after notice or hearing is of no avail. As a matter of fact, he was notified of the time of appraisal and offered the opportunity to accompany the appraiser. As a matter of law, since the agreement did not provide for notice or hearing none was required. Sebree v. Board of Education, 254 Ill. 438; Eliot v. Coulter, 322 Mass. 86.
Another reason for objection on behalf of the plaintiffs is that the appraisal was unfair because "the contract specified an `appraisal' on the basis of the `fair market value' under a Quitclaim Deed conveyance in it commonalty of incumbrances — not on the basis of an estate sole, on a warranty of no incumbrances . . . which both parties knew could not be given." As we understand the above, the plaintiffs are arguing that the amount which they should pay is the fair market value of an undivided one-quarter interest in the property instead of "one-fourth of the present fair market value of said real estate" which is what the agreement specifies.
Plaintiffs argue further that in arriving at the fair market value of the premises the appraiser should have considered the fact that the title is in several persons one of whom is missing. Counsel for plaintiffs admitted knowledge of these facts when he entered into the agreement but made no provisions therefor in it. Proceedings for sale of the whole premises can be instituted under R. L., c. 410, and the interest of the missing person dealt with thereunder and also under R. L., c. 352, ss. 18, 19, if necessary. This should not involve too great an expenditure of money.
The evidence supported the Court's findings that counsel for plaintiffs entered into the agreement "with full knowledge of the situation concerning a missing party" and that "the expense attached to a partition proceeding in order to sell the property involved is negligible and any cloud on the title could be removed." The further finding that "no error is found in the appraisal" is also sustained by the testimony of Murphy that it was "a fair market value of the house and land as I found it."
There was therefore a valid agreement between counsel filed in court to dispose of a pending matter. Burtman v. Butman, 94 N.H. 412, 415. Counsel for plaintiffs having failed to comply with its terms, the Trial Court was justified in ordering him "to perform specifically." Barber v. Company, 80 N.H. 507, 513; Hubley v. Goodwin, 91 N.H. 200, 203; Moore v. Lebanon, 96 N.H. 20.
Exceptions overruled.
All concurred.