(dissenting.) I am unable to concur in the opinion of the court in this case. The facts are plain. Rose and Compton agreed, as attorneys, to bring and prosecute actions to recover lands claimed by Rector, and Rector agreed to give, in return for such services, $1000 in money, and also “one-fourth in value of .the lands recovered in said suits, or its equivalent in money.” Nothing 'was'said about rents either in the contract or by the parties, but a large portion of the litigation was concerning rents. The question to be determined is whether the appellees are entitled to receive any portion of the rents recovered by them, and which grew out of the land after the litigation commenced. I maintain that a reasonable construction of this contract gives them one-fourth of the rents recovered for the use of the land after commencement of the action. If the parties who were in possession of the lands had declined to contest the action, and had surrendered the possession on the day the action was commenced, there would be no doubt that appellees would have been entitled to one-fourth of the land recovered, with the rents arising thereon from the day on which the adverse holders surrendered possession. If possession had been surrendered at the commencement of the action, the appellant would now have no more than is conceded to him, while the appellees would have all they now claim, without the trouble of conducting a long litigation. But the adverse holders did not surrender. An action was brought against them for appellant in the United States circuit court by the appellees as his attorneys, and a protracted litigation followed, the case going on appeal twice to the Supreme Court of the United States. After a ten year legal war, the stubborn resistance of the adverse holders was overcome, their defenses battered down, and the possession of the land recovered for appellant. The appellees expended much time and labor in attending to this litigation, but appellant was not injured by the delay. The energy and skill of appellees protected him against any injurous consequences by reason thereof, for, along with the land, they recovered several thousand dollars, as value of rents or use and occupation of land after commencement of the suit. Appellant now has all that he would have had if the possession of the land had been obtained on the day suit was brought. He has his land and the rents or value of the use of the land from the commencement of this action. But he claims more. He- insists that he is entitled to the rents arising, after the commencement of the action, out of that portion of the land he had agreed to give appellees for their services in recovering the same. If his construction of .the contract be correct, then appellees agreed to receive a smaller fee for attending to a long litigation than for bringing an action -when no defense was made. I see nothing in the contract that warrants such a construction, and his contention seems to me without merit. This contract was, in effect, an agreement to convey land in consideration of services to be performed by appellees. The appellees commenced to perform such services at the commencement of the lawsuit. In equity, an interest in the land belonged to them from that time, and they were entitled to the rents upon the portion which Rector had agreed to convey them. Lysaght v. Edwards, L. R. 2 Ch. Div., 506; Rose v. Watson, 10 H. L. Cases, 678; 3 Pomeroy’s Eq. Jur., secs. 1260-1261; 1 Warvelle, Vendors, 192. As these rents-grew out of the land after the commencement of the action, they were, in contemplation of the parties and within the meáning of the contract, a part of the-lands.
But if we adopt the opposite theory, and say that the word “lands,” used in the contract, did not include the rents growing out of the land after the commencement of the action, then appellees were not required to bring suit for these rents. On that theory, as the proceeding for the recovery of rents was prosecuted by appellees with the knowledge and consent of appellant, and for his benefit, he is responsible to them for the reasonable value of such services, which is shown to be one-fotirth of the amount recovered. Take either view of the matter, and it seems to me that - the judgment of the circuit court is correct, and should be affirmed.