(dissenting).
This is not a case in which the trial court was called upon to fix a reasonable attorney’s fee. Nor is it a suit by an attorney for his fees in which the amount thereof is an ordinary issue of fact. This is a suit to set aside a deed, one which had been executed more than a year before suit was brought, and the ground alleged for setting the deed aside is fraud.1 In my opinion, there is absolutely no evidence of fraud, actual or constructive.
The deed in question was executed by a feme sole. Its opening line is, “I, Nova Dean Griffith, a feme sole * * The deed was signed after her divorce had been granted. Her disabilities were thus removed as effectively as if she had gone to court to get them removed so that she would be free to execute agreements. She was of age, had been married and divorced before, and had the mental capacity to manage her affairs.
The opinion of the majority places emphasis upon the fact that the execution of the deed arose out of a contract made during marriage. The agreement was in writing and signed. It is short and simple, and it plainly provides for a contingent fee of one-fourth. Mrs. Griffith did not contend that she could not or did not understand it. Such an instrument was not void but only voidable. Leake v. Saunders, 126 Tex. 69, 84 S.W.2d 993 (1935). The execution of the deed, for services performed and to be performed in the future, after the removal of the disability of coverture, constituted an affirmance of the contract. Leake v. Saunders, supra. Thereafter the deed could only be set aside, as any other deed, for fraud, duress or mistake.
Moreover, when this suit was brought, the contract was fully executed as far as Mrs. Griffith was concerned. This Court in Podolnick v. Hamilton, 349 S.W.2d 715 (Tex.1961), said, “It is undoubtedly the rule that where a married woman has purchased property and paid part of the purchase price she cannot by rescinding the contract recover back that part of the purchase price which she has paid * * That part of the contract which has become executed is binding upon her in the absence of fraud or mistake. I see no reason why the rule should not work both ways; i. e., why it should not work as to property conveyed for a consideration as well as to property purchased.
In this day of equal rights for women, it should be borne in mind that equal rights carry with them equal responsibilities. In *744my opinion, the acts of the divorced Mrs. Griffith should be treated with equality and by the same standards as if the suit were one by Mr. Griffith. In such event the deed, in my opinion, could only be set aside for fraud, duress or mistake. Mistake and duress are not pleaded. So that leaves only fraud.
The Court of Civil Appeals correctly found that “the evidence shows * * * that appellant [Mr. Archer as well as his wife and partner, Mrs. Archer] fully, faithfully and satisfactorily performed all of his obligations to appellee under his contract of employment with her.” That court and this Court find no evidence of actual fraud.
Since it is conceded that there is no actual fraud and that counsel fully, faithfully, and satisfactorily performed their obligations, the only possible basis for any species of constructive fraud is that the contingent fee of one-fourth fixed, agreed upon, and paid was so exorbitant as to shock the conscience. In my opinion there is no evidence to support such a conclusion in this case.
The only witness to testify that the fee was unreasonable was the same lawyer who had represented Mr. Griffith, the husband, in the divorce case. He testified that the Archers (the attorneys for the wife) had first contemplated asking $5,000 attorneys’ fees to be paid by his client, the husband. At this lawyer’s request, that pleading was not filed. The petition which was filed asked for $1,000 of attorneys’ fees to be paid by his client. Apparently he considered it his duty in representing Mr. Griffith to get the fee lowered so that his client would not have to pay so much. So it was agreed that Mr. Griffith would pay $500, and that “all other attorneys’ fees shall be paid by the respective parties to his or her attorney.”
This lawyer had been a personal friend of Mr. Griffith for some 35 years. They had attended college together. He had fixed his fee to Mr. Griffith after the divorce and property settlement had been consummated. He charged Mr. Griffith considerably less attorneys’ fees than he thought he was entitled to because of their friendship and because of Mr. Griffith’s immediate cash position due to the property settlement. He testified that he thought he had earned a fee of $500 to $600 but he only charged him $350. He estimated that Mr. Archer should be entitled to about $750 on a fixed fee basis. Though he conceded that he had never handled a divorce action on a contingent fee basis and could not recall having ever heard of one being so handled, he testified that in his opinion a contingent fee of one-fourth was unreasonable. This had reference to the handling of the divorce matters incidental thereto and did not include the consideration of any handling of Mrs. Griffith’s property after the divorce.
This lawyer, on cross examination, conceded that he had told Mr. Archer, the wife’s attorney, that the divorce would be contested, and that he had said he did not think Mr. Archer could prevail. He had demanded a jury, paid the jury fee, and the case was placed on the jury docket.
At the time this lawyer was testifying by deposition, the Griffiths had been divorced; Mrs. Griffith had married a Mr. Blakemore; she had divorced Mr. Blakemore and was about to remarry Mr. Griffith. They subsequently did remarry. So the interest in the property conveyed to Mr. Archer was in a building in which Mr. Griffith, the attorney’s former client, had a 50 per cent interest.
Taken in context, it is my opinion that this lawyer’s testimony was that the contingent fee charged Mrs. Griffith was unreasonable. It does not constitute evidence of fraud At most, it amounts to a mere scintilla of evidence of fraud.
On the other hand, the completely disinterested witnesses who testified with regard to the contingent fee testified that it was reasonable. Mr. John Stayton and Mr. Gay-nor Kendall of Austin so testified. Mr. Q. C. Taylor of Austin further testified that contingent fees of 25 to 331/$ per cent were reasonable and customary in divorce cases; *745that many times the lawyer under such arrangement ended up with little or nothing.
I find it difficult to accept the harsh inferences against the legal profession appearing in Cooper v. Lee, 75 Tex. 114, 12 S.W. 483 (1889). The individual attorney in that case, under the jury’s findings, deserved to be spoken to sharply. He was the son-in-law of his aged, nearly blind father-in-law client. They lived in the same house, and the father-in-law had great trust and confidence in his son-in-law. That trust was betrayed, and it is understandable that the Court was aroused about it. But to say, in effect, that all completed transactions between all attorneys and their clients are suspect and presumably fraudulent until the contrary is proved, goes very far. That case, Cooper v. Lee, involved two tracts. The decision as to the 'first tract is correct and supportable, as in any other case, upon a resulting trust. The attorney son-in-law took his father-in-law’s money and bought property in his own name with it. Under these facts, a resulting trust clearly arose. The action as to the second tract to seF aside a deed was held to be barred by limitations. Hence the language concerning the attorney with regard to it was unnecessary to the opinion.
If the Court should desire to hold that contingent fee contracts in divorce cases are against public policy, that is one thing. But to say that executed contingent fee contracts are to be re-examined one to four years after they have been completed, with the former client being in a position to introduce a deed, cry “fraud” and rest, is, in my opinion, carrying things too far. In such cases, plaintiff should have to show fraud, duress, lack of capacity, undue influence, mistake, want of consideration, or any other legal concept applicable to other actions to set aside a deed.
Nevertheless, even assuming the harshness of the language of Cooper v. Lee to be the law, there is no evidence in this case that the contingent fee set and voluntarily paid was so exorbitant as to constitute a fraud upon Mrs. Griffith.
There are several opinions supporting contingent fees and conveyances in payment of them which are in accordance with this view: Kull v. Brown, 165 S.W.2d 1011 (Tex.Civ.App.1942, no writ), in which the Court enforced a one-third contingent attorney’s fee for services to the wife in a divorce action; Hames v. Stroud, 51 Tex.Civ.App. 562, 112 S.W. 775 (1908, writ refused), in which a widow sought to set aside for fraud a conveyance of land to an attorney in payment of a fee and an instructed verdict for the attorney was upheld; and Parker v. Boyles, 197 S.W.2d 842 (Tex.Civ.App.1946, n. r. e.), in which the court held that as a matter of law a married woman was not entitled to have a deed to her counsel set aside, there being no proof of fraud or misrepresentation.
I would reverse the judgments of the courts below and render judgment that the plaintiff take nothing.
GRIFFIN, SMITH and STEAKLEY, JJ., join in this dissent.
. Plaintiff’s pleading reads in part, “ * * * the conveyance by her to Rancher Archer of the property worth approximately $7,000 would constitute such an exorbitant and unreasonable fee as to constitute a fraud upon this plaintiff. * * * ”■