Appellant, Rector, employed appellees as attorneys to institute and prosecute all the suits he .might bring to recover a large number of lots and parcels of land in and near the city of Hot Springs, which had been set apart to others by what are known as the “Hot. Springs Commissioners.” The attorneys were to be paid as set forth in the following contract, to-wit: “Agreed between the undersigned, Henry M. Rector, of the first part, and F. W. Compton and U. M. Rose, of the second part, that said Compton and Rose shall attend to all cases to be brought by Rector, claiming any lands in or near Hot Springs as against persons claiming under adjudications recently made by the Hot Springs commissioners; and for their legal services, they are to be paid as follows: (1) One thousand dollars to be paid by said Rector within one year from this date. (2) Said Rose and Compton shall receive one-fourth in value of all lands recovered in said suits, or its equivalent in money. If Rector shall desire to pay such value in money, then he and Compton and Rose shall each appoint one appraiser, and the two appraisers thus appointed shall select a third, and the decision of a majority of them shall be binding as to such value, which may be paid by said Rector to Compton and Rose at any time within sixty days after said appraisment shall have been made.”
The one thousand dollars was paid as agreed, and the controversy arises as to what really is the amount of the remaining portion of the fee. The suits were prosecuted to a successful termination for Rector in the United States circuit court for the Eastern district of Arkansas, but the defendants took an appeal to the Supreme Court of the United States, and by consent the property involved was placed in the hands of a receiver, who collected the rents, in part, and reported the same at the final termination of the litigation. It also appears that the defendants in those suits, when they were finally decided,.paid to the said attorneys certain of the rents due. It is not so stated in the record, except in the most general terms, and yet the suits, being in the nature of proceedings in ejectment, for the adjudication of the title, carried the accrued rents, as we infer, only the amount being left to be ascertained, and this perhaps was done on the evidence in the main case. Of this, however, the record does not speak definitely. The parties, by agreement, and with the approval of the United States Court, have so arranged the matter as that the only thing before this court is the proper construction of the contract; and this* is made the more necessary by the death of Compton.
Unfortunately, we are not aided by any authorities to which we have been cited by either of the parties, and are unable, of oúrselves, to find any directly in point.
It is evident that the deferred part of the fee was not only conditioned upon the success of the prosecution of the suits, but was also not due until the final termination of those suits. When that event should occur, Rector was to pay in property specifically, or in cash according to its value, and in either case, one-fourth of the land gained. He elected to perform his contract by giving the one-fourth of the land specifically. This of course necessitated his making a deed to that portion to the appellees. Presumably, this deed was in the usual form of deeds of conveyance of lands, for there is nothing in the contract to indicate that it was or should be otherwise. If this be true, the previously accrued rents, — that is, the rents which had accrued previous to the final judgment in the suits, — belonged to appellant; for, without some specific words to that effect in the deed, or in a separate written instrument, we do not think the grantee can claim rents previous to the date of his vestiture of title, either equitable or legal, for a deed in the usual form has no retroactive effect ordinarily, if ever.
Again, whatever may have been the effect of ejectment proceedings in the earlier times of our jurisprudence, it has long been a universal rule that in such suits the recovery of the corftis of the estate and the accrued rents involve only one proceeding. This being true, and the general rule being that a suit for the recovery of land, and for the recovery of the accrued rents and profits thereof, involves only one litigation, if a fee is stipulated in the contract, it covers the services in the whole case. See section 2583, Sand. & H. Dig. By the terms of the contract, at the favorable termination of the suits, the parties were to cause the recovered lands to be valued by appraisers, and Rector, if he should so choose, might fulfill the obligation by paying to the attorneys one-fourth of the value of the lands thus ascertained, in money; or he might set apart to them one-fourth of the land in value specifically. It could hardly be contended that, in making this appraisement, these appraisers should take into consideration, as part of the land, the past accrued unpaid rents. The evident meaning of the contract in this respect is that the land, as it should then be, should be valued by the appraisers, and, according to this valuation, the fee could be paid.
The case is not without difficulty both as to the proper construction to be given to the contract, and also as to the real equities of the matter, but we are not to judge except upon the meaning of the language of the contract, in the light of xthe circumstances surrounding as appears from the record. The appellees are entitled to their one-fourth of the rents and profits since the date of the termination of the suits, by the decision of the Supreme Court of the United States, but not those accrued before that time.
Reversed and remanded, to be proceeded with in accordance with this opinion.