29 Ala. 254 | Ala. | 1856
There is, perhaps, no principle of law which rests on a sounder basis, or which is supported by a more uniform chain of adjudication, than that which holds all information acquired by an attorney from his client, touching matters that come within the ordinary scope of professional employment, as privileged communications. “ The protection is not confined to cases when proceedings are commenced ; for a person oftentimes requires the aid of professional advice, upon the subject of his rights and liabilities, with no .reference
We have copied thus copiously from an opinion of Lord Chancellor Brougham, because it furnishes a forcible view of the rule and the reasons which uphold it. The books abound with decisions to the same effect; the later ones rather enlarging than restricting the privilege. — Cromack v. Heathcote, 2 Brod. & Bing. 4; Taylor v. Blacklow, 3 Bing. N. C. 235 ; Doe, dem. Peter, v. Watkins, ib. 421 ; 1 Greenleaf’s Ev. §§ 237 to 248, inclusive, and authorities referred to ; Parker v. Carter, 4 Munford, 275.
But do the facts of this case bring the communications made to Judge McKinstry within the operation of this rule ? As we understand the testimony, Mr. Parish and Mr. Bedus agreed on the terms of a contract, and, together, related those terms, and the objects they had in view, to an attorney of their common choice, that he might draw the conveyance,. Parish and Redus were the contracting parties, dealing, so far as the testimony, discloses, at. arm’s length ; and we are not informed by the record that any other person was to any extent interested in the subject-matter of the negotiation between them. Neither of the contracting parties made any disclosure to, or sought any opinion from the attorney, which
2. The rule has been too long established in this State, to be now disturbed, that a deed, absolute on its face, may be shown by parol proof to have been intended to operate as a mortgage ; and where the proof is strong and satisfactory, chancery will give effect to it as a security merely. — English v. Lane, 1 Porter, 328 ; Kennedy v. Kennedy, 2 Ala. 571, on p. 589 ; Eiland v. Radford, 7 Ala. 724; Bishop v. Bishop, 13 Ala. 475 ; Sledge v. Clopton, 6 Ala. 589 ; Turnipseed v. Cunningham, 16 Ala. 501 ; Locke v. Palmer, 26 Ala. 312; Brantley v. West, 27 Ala. 542 ; West v. Hendrix, 28 Ala.
One expression in Locke v. Palmer, supra, seems to be in conflict with English v. Lane and Turnipseed v. Cunningham, We do not desire to be understood as re-affirming that principle of the opinion. ' It reads as follows : “ Upon a careful examination of the whole evidence, we have great doubt whether the parties contemplated an absolute sale. The inclination of our mind is rather that security only was, intended ; and such being the fair result of the evidence, we are bound by the principles which govern courts of equity in this class of cases, to declare the contract a mortgage, instead of an absolute sale.” We suppose this'is a clerical error; and that where the word “absolute” precedes “sale,” the word conditional should be substituted. Thus corrected, the opinion is free from objection, and harmonizes with our former adjudications.
3. The testimony clearly shows that the contract in this cage was intended to operate either as a mortgage, or as a conditional sale; and if the latter, this bill is not so framed
4.. It was contended in argument, that this contract was a secret trust, intended to defraud the creditors of Parish. Conceding the law to be as contended, there is no proof that he owed other debts, and no proof of any actual intention to defraud. We are not authorized to presume the existence of any fact, not shown by the record ; and this part of the defense fails for want of proof.
, The decree of the chancellor is reversed, and the cause remanded, that a decree may be rendered in the court below, granting the prayer of the bill, and directing an account to be taken of the moneys paid by Redus to the Bank under the contract, and of the moneys realized from the sale of the slaves. Let the appellee pay the costs of this court, and let the costs in the court below be equally divided between complainant and defendant; the costs imposed on appellee to be paid out of the effects of his intestate, in his hands to be administered.,