24 Miss. 134 | Miss. Ct. App. | 1852
delivered the opinion of the court.
'The appellee filed his bill in the superior court of chancery against the appellants, to set aside a certain mortgage executed by Cyrus Parkhurst on the 29th of October, 1839, conveying certain real estate to M. Parkhurst to secure him in the payment of the sum of $9,806.80; and also to set aside a certain deed releasing the equity of redemption to the said M. Park-hurst of the said mortgaged premises, executed on the 27th of October, 1840, and to subject said property to the payment of a judgment-recovered by appellee against Cyrus Parkhurst on the 24th of February, 1841,, in the circuit court of the United States, at Jackson, for the, sum, of $4,964.13.
The important allegations in the bill are these: — “ That the said Cyrus Parkhurst, on the 24th of January, 1838, was seized and possessed of certain real estate (which is described in the bill); and that complainant is informed, believes, and expressly charges, that the said Cyrus Parkhurst, on or about the 20th day of October, 1839, fraudulently and without any adequate consideration therefor, and for the sole and only purpose of defrauding his creditors, (of whom the complainant is one,) conveyed the said lands, with all the appurtenances thereto, to the said M. Parkhurst, in and by a certain indenture of mort
We have been thus particular in giving the language of the bill, because it is urged that the mortgage was never in fact executed or delivered. It is averred that the land was conveyed on a particular day by the mortgage. This is the complainant’s own allegation; and he cannot, under the rules of pleading, deny a material fact which he has alleged, and called on the other party to answer. This position will, however, be noticed at another place.
The answers admit the execution of the mortgage and deed of release, as alleged in the bill; deny all fraud, and state the consideration to be just and true, as to the amount stated in the mortgage.
Our first inquiry must be to ascertain what facts are put in issue by the pleadings; facts which the pleadings admit cannot be contradicted or varied by the evidence, which is only introduced to establish contested facts.
The bill alleges a conveyance of the land at a certain time and by a certain instrument. The answers admit this allegation. The bill in this respect must, therefore, be taken as true, to wit, that the estate was in fact conveyed at the time alleged. It is, therefore, unnecessary to notice the proof on this subject, as it can only establish the truth of the allegation admitted by the answers. No controversy can, therefore, arise as to the execution of the two deeds; and our examination must be confined to the questions of fraud and consideration.
The fraud is denied, and the consideration is fully stated in the answers. The rule of law is familiar to all in this attitude of the case. He who alleges fraud must prove it. Judge Story says that “it is equally a rule of law and equity that
The law on this subject is clear and well settled, that “ the attorney of the party cannot be compelled to disclose papers delivered or communications made to him, or letters or entries made by him in that capacity.” This protection, said Lord Brougham, in the case of Greenough v. Gaskell, 1 M. & K. 102,103, is not qualified by any reference to proceedings pending, or in contemplation. “ If, touching matters that come within the ordinary scope of professional employment, they receive a communication in their professional capacity, either from a client or on his account, or which amounts to the same thing; if they commit to paper, in the course of their employment on his behalf, matters which they know only through their professional relation to the client, they are not only justified in withholding such matters, but bound to withhold them.” “ If such communications, were not protected, no man would dare to consult a professional adviser, with a view to his defence, or the enforcement of his rights.” “ And this protection extends to every communication which the client makes to his legal adviser for the purpose of professional advice or aid upon the subject of his rights and liabilities.” But the authorities are too numerous and uniform on this point to require further notice. Many of them will be found and reviewed by the court, in the case of Brown v. Payson, 6 New Hamp. R. 444, and in 1 Greenl. Evid. 285.
If the facts had been presented by the bill, as proved by the witness, the proof as to the times the- deeds were executed would have been admissible. But the bill and answers both agree in this respect, to wit, that the deeds were in fact executed, and as to the times of execution. Facts admitted by the pleadings, cannot be varied or contradicted by the proof. Proof is introduced to establish what is alleged by one party, and denied by the other; or in other words, it is intended to establish the facts not admitted by the pleadings.
While we are deafly of opinion, that the deposition, so far as it attempts to establish fraud, by the statements of Cyrus Park-
The witness says, that on the 29th of April, 1840, at the time the mortgage was executed, Cyrus Parkhurst stated that his reason for making the mortgage, was to avoid the judgment which he expected would be recovered against him in the United States court, by putting the property out of his possession. “ Cyrus debated for some time, to whom he should make the mortgage.” “ He spoke of having had a brother named Malvin Parkhurst; that he had not heard from him for a long time; that he did not know that he was then living or dead; said that a good many years back, he, Cyrus, had received a sum of money belonging to Malvin, which he had never accounted for, and to which amount he, Cyras, was then a debtor to said Mal-vin, and concluded that he would make the mortgage deed to the said Malvin. He then took a piece of paper, and made some calculations, from which he gave me the amount stated in the said mortgage as the consideration for the same, which was $9,806.60. That Cyrus occupied, possessed, and controlled the property as he had previously done, till about the close of the year 1840 ; about which time he represented himself as the agent of his brother, still continuing as before to occupy the same.”
This is all of the deposition which tends to establish fraud, and the only proof in the record on this subject. The answers are clear, certain, and positive, in denying the fraud, as well as
Decree reversed, and bill dismissed.