Johnson v. Sullivan

RylaND, Judge,

delivered the opinion of the court.

This case presents two propositions for the adjudication of this court, which we consider the main and principal matters before us. We deem it unnecessary to notice any thing beyond these propositions. The first relates to the action of the court below in regard to the ruling, that the communications made by the Johnsons to Mr. Polk, when they called on him to draw the deed from them to their mother and sister for the lot in controversy as attorney at law, were privileged communications, and as such were not to be detailed or given in evidence; also the like ruling in regard to communications made to Mr. Hudson, an attorney at law.

The subject of privilege communications has often been before the courts both of England and of the states of our Union, and the decisions have not been uniform. Sometimes the decisions confine the communications to “suits begun or intended, or expected, or apprehended.” Other decisions extend the protection to every communication which the client makes to his legal adviser for the purpose of professional advice or aid upon the subject of his liabilities. Now from a careful examination of numerous authorities — decisions of the English and American courts — we think the conclusion may be fairly drawn, that there is no necessity “ that any judicial proceedings should have been commenced or contemplated. It is enough if the matter in hand, like every other human transaction, may, by possibility, become the subject of judicial inquiry.” (Greenl. Ev. § 240.) “The great object of the rule, (says Greenleaf, *480 seems plainly to require that the entire professional intercourse between client and attorney, whatever it may have consisted in, should be protected by profound secrecy.” “ It has therefore been held, (says the same author,) that the attorney is not bound to produce title deeds or other documents left with him by his client for professional advice, though he may be examined to the fact of their existence, in order to let in secondary evidence of their contents, which must be from some other source than himself. If he was consulted merely as a convey-ancer to draw deeds of conveyance, the communications made to him in that capacity are within the rule of protection, even though he was employed as the mutual adviser and counsel of both parties.” (Greenl. Ev. § 241.) In Cormack v. Heathcote, (2 Brod. & Bing. 4,) an attorney was called on to draw an assignment of goods ; he refused, and the deed was drawn by another. The validity of the deed being questioned after-wards on the ground of fraud, the court of common pleas held that the communication made to the attorney first called on was professional, and that evidence of the fraud through him could not be given. In Parker v. Carter et al., ( 4 Munf. 286 -7,) the Court of Appeals of Virginia said: “This court understands it to be settled law that counsel and attorneys ought not to be permitted to give evidence of facts imparted to them by their clients when acting in their professional character; that they are considered as identified with their clients, and, of necessity, entrusted with their secrets, w'hich therefore, without a dangerous breach of confidence, can not be revealed; and this obligation of secrecy continues always, and is the privilege of the client, and not of the attorney. The court is also of opinion that this restriction is not confined to facts disclosed in relation to suits actually depending at the time, but extends to all cases in which a client applies to his counsel or attorney for his aid in the line of his profession. If the principle was confined to causes actually depending at the time, there would be no safety for a person consulting counsel as to the expediency of bringing a suit or of compromising one *481 which is contemplated to be brought against him.” (See also Wilson v. Troop, 7 Johns. Ch. R. 39.) In Foster v. Hall, 12 Pick. 89 , Chief Justice Shaw makes an elaborate review of the cases on this subject, and says: “On the whole, we are of opinion, that although this rule of privilege, having a tendency to prevent the full disclosure of the truth, ought to be construed strictly, yet still, whether we consider'the principle of public policy upon which the rule is founded, or the weight of authority by which its extent and limits are fixed, the rule is not strictly confined to communications made for the purpose of enabling an attorney to conduct a cause in court, but does extend so as to include communications made by one to his legal adviser whilst engaged and employed in that character, and when the object is to get his legal advice and opinion as to legal rights and obligations, although the purpose be to correct a defect of title by obtaining a release, to avoid litigation by compromise, to ascertain what acts are necessary to constitute a legal compliance with an obligation, and thus avoid a forfeiture or claim for damages, or for other legal and proper purposes not connected with a suit in court.” We do not think it necessary to examine and review the cases on this subject. We are satisfied that by the rule most generally received as the law at this day, the communications made in this case to Mr. Polk and to Mr. Hudson are privileged, and these gentlemen, stating that the relation in which they stood to the parties making the communications was a professional one, the court very properly refused to require them to disclose these communications. So the first proposition must be ruled in favor of the judgment below.

The second proposition regards the correctness of the instructions given for plaintiffs in this case. As to the use of the words “ bona fide” we can not concur in the view taken by the appellant’s counsel. We do not regard the use of such words' as calculated to obscure the questions before the jury. These words are so often used by our legislators, and by persons frequenting the judicial tribunals of the country, that they may be considered well understood, if not “ anglicised.”

*482 The 4th instruction given for the plaintiff we consider wrong. It was calculated to mislead the jury. It was a misdirection. It is as follows : “ If the jury believe from the evidence that at the time when James H. and Madison Y. Johnson made the deed to Hannah Johnson, they owed her the amount of the purchase money paid to Sheppard, or that the money paid to Sheppard was hers, there was no fraud in their making the deed to their mother, even if they knew at the time that they would fail, and that their creditors would, in consequence thereof, lose their debts, or even if they intended otherwise to defraud their creditors.” This instruction tells the jury that upon either one of two matters being proved before, them, and believed by them, then there is no fraud in making this deed, though the grantors intended to defraud their creditors when they made it. One of these two things is 'that the sons, the grantors, owed their mother the amount of the money paid to Sheppard at the time they made her the deed; the other is that the money paid to Sheppard was hers. Now it must strike any one conversant with legal proceedings, that this instruction, no matter what was intended by it, left the jury to ascertain one of these two propositions only ; and no matter which they found to exist, then there was no fraud. They were only to ascer-' tain that the sons owed their mother the amount paid Sheppard. If so, there was no fraud, no matter what combination, collusion or bad faith might exist in relation to the transaction on the part of the mother and sons. This is certainly erroneous. The taking and receiving the conveyance by the mother in good faith is left entirely out of their consideration, and they have but to see if the sons owed the mother, or if it was the money of the mother.

There is no principle better settled than that a purchaser for value may still be held a fraudulent purchaser. (1 Burrow, 474; 7 B. Monroe, 369; 4 Ver. 412; 18 Mo. 180, 181 .) Now a creditor may combine with his debtors fraudulently to defraud his other creditors. As a purchaser for value may take a conveyance from a fraudulent debtor, which will be void *483 against bis creditors, so may a creditor take in fraud of other creditors a deed or conveyance, which may be declared void. This instruction was therefore wrong. In looking over the whole instructions given by the court, we can not find in any or all put together what may be considered as having the effect to do away with the injury or wrong that might follow to the defendants from this one, pointed, strong and improper instruction. We have purposely omitted discussing the question as to the ownership of the money by the mother, leaving that to be considered when the cause is retried, as to do so would require us to investigate and give our views of the evidence, which might have an effect on the retrial that we desire to avoid. The fourth instruction is wrong, and for giving it the judgment below is reversed, and the cause remanded ;

Judge Scott concurring.