Bank of Utica v. Mersereau

At the time of docketing of the judgment of the Bank of Utica against Hoffman and John G. ard James G. Mersereau, in October, 1834, the judgment debtors, or some of them, were in possession of the whole of the premises in controversy in this cause, claiming that John G. Mersereau was the legal owner thereof, under the conveyance of January, 1831. And that possession was continued until it was surrendered to the two defendant banks, as subsequent mortgagees of the judgment debtors, in July, 1836; after the execution of the complainant was in the hands of the sheriff and had been levied upon the premises. If this judgment, therefore, is valid, and had this been a mere possessory action, to recover such possession for the complainant, without the necessity of settling the legal ownership of the fee of the premises, there would be no difficulty in disposing of the case, upon the ordinary principles which are applicable in possessory actions. And the defendant banks, without showing a superior right in themselves acquired subsequently to their entry as mortgagees merely, would not be permitted to hold the possession against the complainant. For where a party enters into the possession of lands claiming under a particular title, he cannot set up an outstanding title in a stranger, as a defence

By the common law, if a grantor, who had no interest, or only a defeasable interest, in the premises granted, conveyed the premises with warranty, and afterwards obtained an absolute title to the property, such title immediately became -rested in the gran

Let us apply these principles to the case under consideration: Previous to the conveyance of Lindsley and wife, of the 15th of December, 1819, Joshua Mersereau, jun. the grantee in that conveyance, had conveyed to the three individuals who were the executors of H. Garretson the same premises, in connection with other lands excepted in the deed of Lindsley and wife; with full covenants of warranty, as well as of seisin. And if nothing then had occurred to prevent the covenants of warranty in the deed to the executors from operating by estoppel, upon the title conveyed to Joshua Mersereau, jun. by Lindsley and wife, that title immediately became vested in J. Garretson, J. Guyon and P. I. Van Pelt; so as to vest the absolute fee in them, by estoppel, not only as against Joshua Mersereau, jun. and his daughter and heiress, but also as against the Seneca County Bank, to whom the daughter and her husband subse

Although the grantees in the deed of February, 1818, which created the estoppel, are described as executors, there is nothing in that deed to show that the estate was intended to be granted to them as trustees; so as to create a joint tenancy which would belong to the survivors. The estoppel, therefore, vested the legal title to the premises in the three grantees named in that deed, as tenants in common; under the provisions of the act of February, 1786, directing the mode of conveyances to joint tenants. (1 R. L. of 1813, p. 54, § 6.) The executor of J. Guyon joined in the conveyance to John G. Mersereau, in January, 1831; and was probably either the devisee, or had power under the will of J. Guyon to transfer the interest of the latter in the premises as tenant- in common with the other grantors in that deed. If so, the title to that third of the premises stands upon the same footing as the other two thirds. It however was not material for the complainant to establish that fact in the present case. For it is not pretended that either of the defendants has obtained the title of J. Guyon to that undivided third of the premises, by any conveyance from his heirs or devisees, unless they obtained it through the conveyance'to John G. Mersereau in 1831. And as all the other defendants went into possession claiming title to the premises under that conveyance, they cannot set up an outstanding title in a stranger, to defeat a party who claims the premises under the same.title as themselves; but by a prior right which c erreaches their claim. (Ives v. Sawyer, 4 Dev. & Bat. Rep. §1.) The tase might have been different, as to this undivided third of the

It is insisted, however, that the covenants in the deed of the 9th of February, 1818, had been broken at the time of the conveyance. from Lindsley and wife to Joshua Mersereau, jun. in December, 1819; and that the arrangement between J. Garretson and the grantee in that conveyance, and the written disclaimer of Garretson, were a satisfaction of the damages which he and his associates had sustained in consequence of the breach of the covenants in the deed of 1818; and thereby prevented the title acquired under the deed of Lindsley and wife from vesting in the grantees in the deed which had created the estoppel. Where the breach of the covenant of seisin affects the whole title, so that nothing passes to the grantees in the deed, a recovery by the grantees for the damage sustained by the breach of that covenant, might have the effect to prevent the operation of the estoppel created by such covenant, or even by the covenants of warranty ; by creating a counter estoppel, which would prevent, the grantees, or those claiming under them, from alleging that they acquired any interest in the land by the original conveyance to them. (Stinson v. Summer, 9

■ The covenants of warranty in a deed are not broken until eviction. And in this case there had been no eviction of the grantees of Joshua Mersereau, jun. at the time of the conveyance to him by Lindsley and wife. I see nothing, therefore, which could prevent the operation of the estoppel, by the general covenants of warranty in Mersereau’s prior deed to Garretson, Guyon and Van Pelt; so as to vest in them the title, which had been actually divested by the sheriff’s sak?. And the cer

Joshua Mersereau, jun. also had rendered himself personally liable for the payment of the $1700 secured by his bond and mortgage of the same date, upon an agreement between him and Garretson and the other mortgagees for whom Garretson acted, that Mersereau should receive a conveyance of their legal title to the premises. Or what is more probable, both parties were ignorant of the law' relative to the passing of the legal title to land by estoppel; and the giving of the $1700 bond and mortgage of Mersereau, and the assignment of the mortgages executed by other grantees of the premises were intended to be in satisfaction of the claim of the grantees in the deed of February, 1818, for the supposed loss of the land, by the sheriff’s deeds, and the subsequent conveyance of Lindsley and wife to Joshua Mersereau, jun. Upon the first supposition, a court of equity would have compelled a specific performance, by requiring Garretson, Guyon and Yan Pelt to convey the legal title, upon the payment of the $1700 and interest secured by the mortgage. But upon the supposition that both parties had acted under a mistake, in supposing that the grantees in the deed of February, 1818, had lost their title to the land, and that such title was actually in Mersereau by the force and effect of the deed of Lindsley and wife to him, a court of equity would have directed the $1700 bond and mortgage to be delivered up and cancelled, as having been obtained without consideration. Or rather, the bond should be delivered up and cancelled, for the legal title being already in the mortgagees, by estoppel, the mortgage was a mere nullity, as a security upon the land for the payment of the $1700. And the assignment of that bond and mortgage to John G. Mersereau, simultane

The conclusion at which I have arrived upon this part of the case, therefore, is that Joshua Mersereau, jun. had no legal estate or interest in any part of the premises at the time of his death; and that if the judgment of the complainant was not fraudulent as against the other creditors of Hoffman & Mersereau, the proper remedy of the-complainant was by a suit at law to recover the possession of the premises in controversy. And if the defendants had made a proper objection, in their answer, to the jurisdiction of this court to give relief to the complainant, upon the case made by the bill, the vice chancellor should have dismissed the bill, with costs; but without prejudice to the rights of the complainant in a suit at law. For as Joshua Mersereau, jun. had no interest in the premises in controversy, upon which his mortgage to the executors could operate as an incumbrance, or which could be affected by the outstanding judgments against him, neither the mortgage nor the judgments were such a cloud upon the title of the complainant as would authorize an application to this court for relief. But as the defendants neglected to make any such objection to the jurisdiction of the court, in theiranswer, and had thus compelled the vice chancellor to decide upon the legal rights of the parties, it was proper for him, in the decree, to declare the invalidity of the mortgage1 and judgment's as liens upon «the title acquired by the complainant under the sheriff’s deed. For the court of chancery will not refuse to take jurisdiction of a case, and to make a proper decree therein, merely upon the ground that the complainant had a perfect remedy by an action at law; wl. en the parties have submitted themselves to the jurisdiction of the chancellor, without objection. (Ludlow v. Simonds, 2 Caines’ Ca. in Error, 56. Hawley v. Cramer, 4 Cowen, 727. Gilb. Ch. Pract. 220. Grandin v. Le Roy, 2 Paige’s Rep. 509. Rees v. Smith, 1 Ohio Rep. 509 .) But where the complain

The deed from Joshua Mersereau, jun. to Garretson, Guyon and Van Pelt, which was produced upon the hearing, merely describes them as executors of H. Garretson deceased ; but does not profess to convey the premises to them in their character of executors. And if the proceedings were different a question might arise whether the grantees in that deed did not take the title as tenants in common ; so that the conveyance from the two surviving grantees, and the executor of the deceased grantee, to John G. Mersereau conveyed only two undivided two-third parts of the premises in question. ‘ For there is no evidence in the case that the executor of J. Guyon, one of the grantees in the deed of February, 1818, was either the heir at law of the decedent, or was authorized by his will to convey his real estate. Bull think the parties, by the pleadings, are precluded from raising that question in this suit. The bill alleges that the land conveyed to Joshua Mersereau, jun. by the executors as such, was reconveyed by him to the said executors, and that his wife also executed a quit-claim deed of the premises to the said executors, by which her interest in the premises was also vested in the said executors. These are allegations that the reconveyance of Joshua Mersereau, jun. to them, and the quit-claim of his wife to them, were to the grantees in their characters of executors. And the answer of the defendants admits this reconveyance by Joshua Mersereau, jun. to the executors, and the quit-claim of bis wife to them, nearly in the same words of the allegations in the bill. These facts,

I do not agree with the vice chancellor that the comptroller’s deed is void, either as to its form, or because it does not Specify the year in which the taxes were laid for the non-payment of which the premises were sold. The provision in the revised statutes directing the comptroller ¿o execute a conveyance of the property sold, in the name of the people of the state, is not new, but was contained in the revised laws of 1801 and of 1813. (1 Rev. Laws of 1801, p. 555. 2 Rev. Laws of 1813, p. 517.) And I believe the comptroller’s deeds upon tax sales have been in the same form in this respect under all of these laws. They have so far back as I have examined, which is more than a quarter of a century. And thousands of titles now depend upon conveyances executed in the same form as the deed in this case. When we recollect, too, that deeds in this form have been executed by such men as Chief Justice Savage, Mr. Justice Marcy, and Silas Wright, who have heretofore filled the office of comptroller, and probably with the sanction of the several distinguished jurists who have from time to time occupied the station of attorney general of the state, and that many

It is true the deeds which have been given by the comptroller from time to time, are not technically given in the name of the people. But they recite the substance of the statutes under which the sales have been made, the non-payment of the taxes which have been charged- upon the land in pursuance of such laws, the advertisement and sale of the premises, the payment of the purchase money into the treasury of the state, by the grantee, and that the premises have not been redeemed; and

Again; if this supposed error in the form of the comptroller’s deed was now material, it would not justify a court of equity in declaring that the purchaser had no right to the land by virtue of his purchase; but the comptroller, if necessary, would be required to give him a new deed, in the proper form. There is nothing in the statute requiring the deed to state in what year the tax was assessed, for the non-payment of which the premises were sold. The deed states that such taxes have been assessed and returned to the comptroller, and have remained unpaid for two years from the first of May following the year in which they were assessed ; which is all that could be necessary to show, upon the face of the deed, that the comptroller was authorized to make the sale. And if the owner of the land wished to ascertain for what year the taxes were assessed, he could do so without any difficulty by referring to the books which by law are required to be kept in the comptroller’s office.

The deed in question, therefore, if the lands assessed, and the part conveyed, had been so described therein as to be capable of location, would have been sufficient, prima facie, under the practical construction which has been given1 to the tax laws, to entitle the Steuben County Bank1 to 'the 800 acres of the premises in controversy which are claimed under ti¡at deed. This prima facie evidence of ownership, however, was liable to be rebutted, by showing that the tax returned to the comptroller as unpaid had actually been paid to the collector. (Jackson v. Morse, 18 John. Rep. 441 .) It might also be rebutted, by showing that the land thus sold and conveyed by the comp

There are two provisions of the statutes in relation to notices to occupants, which are applicable to all sales made subsequent to the 5th of April, 1830, for the non-payment of taxes; and which are necessary therefore to be considered in the decision of this case. The original eighty-third section of the article of the revised statutes relative to sales for unpaid taxes, and the conveyanee and redemption of lands sold, (1 R. S. 412,) declared that whenever any land sold for taxes, and conveyed by the comptroller, should at the time of such conveyance be in the actual occupancy of any person, the grantee, or the person claiming'under him, should serve a written notice on such occupant, stating what was necessary to redeem the land from the sale, and that unless the same was redeemed, within the time prescribed, the conveyance of the comptroller would become absolute. . And the 87th section of the same article required the grantee or other person claiming under him, in cases of such occupancy, in order to complete his title to the land so conveyed, to file with the comptroller the affidavit of the service of the notice upon the occupant. These provisions of the revised statutes are still in full force; having never been repealed or abrogated. But the act of the 5th of April, 1830, made a further provision on the subject of notices to occupants of lands which should thereafter be sold for taxes, and where the occupants should' be in the occupation of such lands, at the expiration of the two years given for the redemption thereof; that is, at the end of two years from the last day of the comptroller’s sale for taxes; as provided for in the original sixty-sixth section of the article of the revised statutes before referred to. (1 R. S. 409.) In case the lands sold by the comptroller are occupied at«the expiration of the two years, whether conveyed by the comptroller or not at that time, the act of April, 1830, required the purchaser, or

The effect of these several statutory provisions is that if the land sold by the comptroller for taxes, or any part thereof, is actually occupied at the end of the two years from the close of the sales, the purchaser, or his assignee, must serve the notice required by the act of April, 1830, upon the occupant, and file the evidence of such service with the comptroller, within the times prescribed by that act, or by the subsequent act amending the same, (Laws of 1844, p. 397,) or he will lose the benefit of his purchase. Where he serves such notice, and files the evidence of such service upon the comptroller, within the time prescribed, if the lands are not redeemed within the six months allowed by the act of 1830 for that purpose, his title will become perfect, as soon thereafter as he shall have obtained the comptroller’s deed; whether such deed shall have been given before or after the service of such notice. (Laws of 1830, p. 113, § 3. 1 R. iS. 3d ed. 466, 5 105.) In case however the lands sold were not occupied at the expiration of the two years from the time of sale, but there is an actual occupant of the land sold, or of any part of it, at the time of the giving of the comptroller’s deed, then the original eighty-third section of the article of the revised statutes before referred to still applies. And in that case the title of the purchaser will not become absolute, under the comptroller’s deed, until six month’s after he shall have served the occupant with the notice to redeem specified in the eighty-fifth section; and shall have obtained the comptroller’s certificate that evidence of the fact of such service has been filed, and that the land was not redeemed by the payment of the redemption money into the treasury within six months after the service of such notice.

In the case under consideration, therefore, if the lands assessed and sold had been properly described, and no part of the 800 acres was occupied at the expiration of the two years from the time of sale, the vice chancellor should not have deprived the Steuben County Bank of the benefit of what the owner of the land would have been required to pay to redeem the same; but the decree should have directed that amount to be paid by the complainant, or that the Steuben County Bank should be permitted to complete its purchase of the 800 acres by giving the notice required by the" provisions of the revised statutes in such cases. The fact that the 800 acres were actually occupied at the date of the comptroller’s deed, in December, 1837, is fully established. For the case shows that T. L. Mersereau leased the whole of the premises in controversy from the two defendant banks, on the 4th of November preceding the giving of that deed, for the term of one year; and he went immediately into possession under that lease. It is true, as to one half of the premises, he was the tenant of the grantee in the comptroller’s deed. But that did not authorize the grantee in such deed to perfect his title as against the complainants’ paramount claim upon the land, or as against the Chemung Canal Bank, without giving the notice required by the statute. This question was fully considered by the late Chief Justice Savage, in the case of Jackson v. Esty, ( 7 Wend. Rep. 148 .) And the supreme court there decided that it was not necessary that the occupant of the land sold for taxes should be the owner thereof; and that an occupant who was not the owner could not waive the service of a notice on him, so as to perfect the title of the purchaser without an actual service of notice upon such occupant, and without furnishing evidence of such service to the comptroller. That decision I think was in accordance with the true construction

In this case, however, I have arrived at the conclusion that the sale by the comptroller is one which came within the provisions of the act of April, 1830; because a part of the premises at least were occupied by the Messrs. Lewis at the expiration of the two years allowed by law for the redemption of the 800 acres from the sale. And the original purchaser at the comptroller’s sale, whoever he was, lost his right to perfect his title; by his neglect to serve the notice upon them within the time prescribed in that act. The pleadings and proofs show that as early as 1831, John G. Mersereau, claiming to be the owner of the premises conveyed to him by the deed of Garret-son and others, contracted to sell 1000 acres off of the north end thereof to the Messrs. Lewis; that they moved on to the land, and exercised acts of ownership over the same by improving parts thereof and getting lumber from the residue of the 1000 acres, until some time in 1834. And the maps produced in evidence show that the land so occupied by the Messrs. Lewis, included nearly two-thirds of the 800 acres sold by the comptroller for taxes; even if the same should be laid out in such a form as to exclude the whole of the two Pier lots, which had been actually occupied from a much earlier period. It has been very correctly decided, by the late supreme court, that if any part of the premises sold for taxes is actually occupied at the times specified in the statutes relative to the giving of notices to the occupant, the purchaser must give the prescribed notice to the occupant of such part of the premises, and obtain the comptroller’s certificate, that such notice was, given and that the premises were not redeemed within the time prescribed, before he can complete his title to any part of the premises included in the sale. (Comstock and wife v. Beardsley, 15 Wend. Rep. 348 . Bush v. Davison, 16 Idem, 550.)

The most important question in this case is, whether the judgment, under which the complainant claims title to the premises in question, was fraudulent and void as against the defendant banks, as creditors of the firm of Hoffman & Mersereau. And in.examining this, question it is proper to ascertain, in the first place, whether the decision of the. vice chancellor was right in suppressing the deposition of Hoffman, and ■in denying the application, made on the part of the complainant, to suppress the deposition of Cotton;, one of the attornies employed by the firm of Hoffman & Mersereau to draw the bond and warrant to be executed by them and to enter up a judgment thereon against them in favor of the complainant.

If Hoffman was an incompetent witness, the release produced at the hearing did not restore his competency, even if that release had been duly proved before the closing of the proofs in the cause. It is merely a release of his personal liability upon the judgments, in favor of the complainants, as a copartner or joint debtor with the defendants John G. and James G. Mersereau, for the.consideration of one dollar; ip pursuance of the provisions of the act of April, 1838, for the relief of partners and joint debtors. (Laws of 1838, p. 243.) But it leaves those judgments, and the debts for which they were recovered, in full force against his copartners. And if his copartners should hereafter be compelled to pay any part of those debts, either because the title to the land sold upon the execution on one of those judgments failed, or for any other cause, it would leave him still liable to them for his share of the debts. The effect of the release is not therefore to discharge any interest which the witness lias in the event of the suit, in favor of the complainant as against, the defendant banks; but merely to compel the complainant to seek redress against John G. and James G. Mernereau in the first instance, and leaving them to. their remedy from the witness in case the complainant recovers any thing against them. To restore the c'ompetency of the witness, if he was in fact incompetent in consequence of any contingent

Again ; I think this release, was not properly proved so as to affect the question of the competency of the witness, even if such release amounted to any thing if properly proved. Where it only appears from the examination of the witness himself that he is interested in favor of the party calling him, or that he is otherwise incompetent, the objection to his competency may be removed in the same manner that it was created. And the witness may be examined, by the party calling him, to show that his interest has been removed by a release, or to prove any other fact to establish his competency at the time of his exami nation. But where his interest, or other incompetency, appears aliunde the witness cannot be examined for the purpose of showing his competency, by testifying to the execution of a release, or to any other fact. (Greenl. Ev. 471, § 423. 13 Mart. Louis. Rep. 709. 4 Serg. & Rawl. 298 . 1 Cowen, 540.) The testimony of Hoffman therefore should not have been received to prove the execution of the release to himself from the. complainant.

Nor could ex parte affidavits of other persons be. received, after the proofs in the cause had been closed, to prove that this release had been executed and delivered to Hoffman before he was examined as a witness. As the release which was produced on the hearing was neither dated nor witnessed, the acknowledgment by the party executing- it was only evidence that he had executed it at or before such acknowledgment. Not that it was executed previous to the examination of Hoffman as a witness. The acknowledgment of the release, therefore, which was .long subsequent to such examination, would not have aided the complainant, even if notice had been given of the intention to use the release, on the hearing, ten days be-for the proofs were closed; as required by the 75th rule of the court. This release therefore must be laid entirely out of the question in deciding upon the competency of Hoffman as a witness for the complainant.

In the case of Jones v. Henry, (3 Lift. Rep. 435,) the court of appeals in Kentucky decided that the plaintiff in the execution, who had indemnified the sheriff for selling property which it was afterwards ascertained did not belong to the judgment debtor but to another person who had recovered the value thereof in an action against the sheriff, was entitled to relief against the judgment debtor to the extent of the sum endorsed upon the execution. This decision was afterwards followed by the same court, in the case of Price v. Boyd, (1 Dana's Rep. 436.) A similar decision was made by the supreme court of Illinois, in the case of Warner v. Helm, (1 Gilm. Rep. 220.) The equitable principle before referred to and which is recognized in these decisions is applicable ,to the case now under consideration. For it is alleged in the bill, and admitted in the answer, that the complainant purchased the premises at the sheriff’s sale, under a belief that the title was in the judgment debtors or one of them at the time of the docketing of the judgment. And this is admitted by the answer of the defendants. Indeed, in the statement of their property, furnished to the complainant and to the defendant banks in the spring of 1834, Hoffman &. Mersereau represented to the complainant that they were the owners of the John Garretson lands of 4100 acres. The case therefore is like that of Muir v. Craig, ( 3 Blackf. Rep. 293 ;) where the supreme court of Indiana granted relief to the purchaser, against the judgment debtor who had represented the lands sold by the she* iff as belonging to him, but it was subsequently ascertained-Jiat such was not the fact. 1 am aware that the supreme, cf art of Pennsylvania, in the case

I think, however, this witness was not disqualified, by interest, to give testimony in favor.of the complainant to rebut the charge that the judgment wi i fraudulent and void as against the two defendant banks. Nt r was he incompetent as a witness for the complainant upon t. e question as to the acceptance

Hoffman, so far from being interested in favor of the complainant in relation to the question of fraud in the judgment, appears to have been interested in favor of the parties against whom he was called and examined, on this point in the case. For if the title to the land was in the judgment debtors at the time of the giving of the bonds and mortgages to the two defendant banks, a decree against the claim of the complainant upon the ground that the judgment was fraudulent and void as against those' mortgagees, would enable the mortgagees to obtain satisfaction of their debts by a foreclosure and sale of the mortgaged premises. But such a decree would not, as between the complainant and Hoffman & Mersereau, prevent the sale of the premises by the sheriff from operating as a satisfaction of the judgment, to the extent of the complainant’s bid, and a satisfaction, pro tanto, of the debts included in the judgment.

In reference to the testimony of this witness in relation to the acceptance of the chattel mortgage, and to his agency under the complainant, and as to the amount of lumber covered by the mortgage, and the disposition of the proceeds of the sales thereof and the liability of his copartners for the debts of Love, Pickering & Co., Hoffman might be, and probably was, interested in the questions propounded by the counsel for the complainant. That, however, only went to his credibility. But in relation to all these matters I cannot see that he had any interest in the event of this suit. It is true if the complainant should be defeated in this suit, net upon the ground of a want

For these reasons the vice chancellor should not have suppressed the whole of the testimony of Hoffman; but only so much thereof as related to the title of the judgment debtors, or of John G. Mersereau, to the premises in controversy, at the time of the docketing of the judgment of the complainants. ’ The residue of the decretal order as to the suppression of the testimony of Hoffman, including the direction as to the costs of the motion to suppress, must be reversed; without costs to either ■ party on that motion.

The next question to be considered is whether the vice chancellor erred in refusing to suppress the deposition of H.

From this statement of the testimony of Cotton, it appears that the whole circumstances which he was called upon to disclose, except the mere fact of the execution of the bond and warrant, which was a matter of no consequence in the cause, were conversations of his clients in reference to the subject of his professional employment; which conversations it is wholly improbable they would have held with him if they had not been under the supposed seal of professional confidence. And I think the true principle in reference to privileged communications between attorney and client to be, that where the attorney is professionally employed, any communication made to him, by his client, with reference to the object or the subject of such employment, is under the seal of professional confidence, and is entitled to protection as a privileged communication. Such appears to be now the settled rule of the courts of England; although it was at one time attempted to confine the privileges 'to communications made in the prosecution or defence of a suit which had been, or was about to be commenced. The leading cases on the subject there are Cromack v. Heathcote, (2 Brod. & Bing. Rep. 4,) in the court of common pleas, and Greenough v. Gaskell, (1 Myln & Keen’s Rep. 98,) and Herring v. Clobery, (1 Phillips’ Rep. 91,) in the court of chancery. The last of these cases was preceded, in this state, by the very well considered opinion of Mr. Justice Bronson in the case of Coveney v. Tannehill, (1 Hill’s Rep. 33,) in the supreme court. The same correct principles had long previously been recognized in this country, in the opinion of the late Judge Roane of the court of appeals of Virginia, in the important case of Parker v. Carter and others, ( 4 Munf. Rep. 273 .) There a lawyer had

Professor Greenleaf, in his very valuable and well arranged treatise on the law of evidence, very correctly observes , in relation to such communications, that the seal which the law once fixes upon them, remains forever; unless removed by the party himself in whose favor it was there placed. (Greenl. Ev. 278, §243.) And where the privilege belongs to several clients, I do not think any one of them, or even a majority, contrary to the expressed will of the others, can waive the privilege, so as legally to justify the attorney in giving testimony in relation to such privileged communications; especially in a case like the present, where the testimony of the attorney, as to matters communicated to him professionally, equally affects the moral characters of all of his clients ; by showing that they employed him to assist them in giving a fictitious judgment for the purpose of defrauding their creditors. Nor does the fact that the client, whose assent to the removal of the seal of professional confidence from privileged communications has not been obtained, is not a party to the suit in which 'his attorney is called upon to testify, alter the case. (Per Buller, J. in Wilson v. Rastall, 4 Term Rep. 760. Rex v. Withers, 2 Camp. Rep. 578.)

In this case it appears from the exemplification of the judgment, which is in evidence, that Cotton, the attorney, was a subscribing witness to the warrant of attorney, which he f re-

In the case of Robson v. Kemp, (5 Esp. N. P. Rep. 53,) which was cited by the counsel for the defendants, upon the argument, to show that an attorney who becomes a subscribing witness to an instrument is bound to disclose all that took place at the time of its execution, Lord Ellenborough expressly declared that the attorney was not bound to disclose what took place in the preparation and concoction of the instrument which he witnessed, or at any other time, not connected with the execution of such instrument. Thus an attorney who is professionally employed to prepare a deed for his client, and who afterwards witnesses its execution, may be compelled not only to prove the execution of such deed, but also to testify whether it was ante dated ; whether it. was in the same form in which it now appears at the time of its execution, or has been altered ; and whether it was actually delivered at the time he subscribed his name thereto, as a witness. So if the deed has been lost, or is in the hands of the adverse party who refuses to

The seal of professional confidence I believe has never been held to cover a communication made to an attorney to obtain professional advice or assistance as to the commission of a felony or other crime which was malum in se. The opinion of Chief Baron Gilbert certainly was that the privilege of attorney and Counsel did not extend to such cases. (1 Gilb. Ev. 277.) And as no one is entitled to the advice or assistance of counsel, or of an attorney, to enable him to do an illegal act, if the question had arisen for the first time in this case, I should have no hesitation in deciding that the communications made by Hoffman &■ Mersereau to their attorney were not privileged; because they were made for the purpose of getting his professional assistance in the perpetration of a fraud upon their creditors. It is as contrary to the duty of an attorney, or a counsellor, to aid his client, by professional services, in the perpetration of a fraud, or in the violation of any law of the state, as it is to aid him in the commission of a felony; although the moral turpitude of the act may be much greater in the one case than in the other. I can therefore see no good reason for extending the principle of privileged communications to the first class of cases, and not to the last. The practice, however, appears to have been otherwise for more than a century and a half; and 1 do not now feel authorized to adopt a new rule on the subject.

As early as 1693, in the anonymous case, reported by Skinner, which was tried before Chief Justice Holt at the sittings after Michaelmas term, in the 5th of William and Mary, ail attorney who had drawn an agreement between a sheriff and his under sheriff was called to prove that such agreement was corrupt and illegal. But the professional privilege was extend

For the reasons before stated, however, the application of the complainant to suppress the testimony of Cotton ought to have been granted by the vice chancellor. And so much of the decree appealed from as denies that application with costs, must be reversed.

Upon the question of fraud, if the testimony of Cctton could have been received, and the explanations of Hoffma i rejected,

The giving of the bond and warrant, by all the members of the firm of Hoffman & Mersereau, for the amount of the $1575 note of Love, Pickering & Oo. is presumptive evidence that they were legally or equitably liable for the payment of that note; either because they were interested in the last mentioned firm as copartners, or because it was an accommodation note made and discounted for their benefit. And the defendants, who insist that the taking of a judgment, and including therein the amount of that note, is evidence of an intention to defraud other creditors of Hoffman & Mersereau, are bound to satisfy the court that the officers of the bank have intentionally allowed a debt to be included in the judgment for which the bank had no legal or equitable claim upon the judgment debtors.

Although the testimony of Hoffman, contradicted as it is, in many particulars,, by the testimony of other witnesses, has not entirely satisfied me that this $1575 note was properly included in the judgment, the manner in which the members of this firm did their business, and the complicated nature of their various transactions were such that I cannot say the fact is established that such note ought not to have been included. Much less have the defendants established, by any legal testimony, that even the members of that firm intentionally included in. the judgment a debt which they knew they ought not to pay; and with the corrupt intention of defrauding their other creditors.

It may also be proper to observe, that if the whole amount included in the judgment was justly due to the Bank of Utica, from Hoffman & Mersereau, any expectation on the part of the members of that firm, or of any of them, that the judgment would be used for the purpose of enabling them to delay or hinder their other creditors, would not render the judgment fraudulent, as to th'e bank; unless there ivas some agreement, or at, least an intention, on the part of some of the officers of that institution, that the judgment should be thus used. But if the bank was already amply secured for all its legal and

. The letter of the cashier, to Hoffman', post-marked at New-York the 14th of September, is relied upon by the defendants to show that the cashier not only considered the chattel mortgage an ample security for all the debts due to the bank, but that he had made a journey from New-York to Philadelphia for the sole purpose of suggesting the giving of a judgment merely to delay the other creditors of Hoffman & Mersereau in the collection of their honest debts. Such undoubtedly is the construction which a person having but a slight knowledge of human nature would be likely to put upon that letter. My understanding of it is directly the reverse of that, however, when I view it in connection with other facts which are in evidence in this cause. I think the cashier at lliat'time had become seriously alarmed as to the safety of the debts due to the bank; and that he went to Philadelphia for the purpose of seeing Hoffman, and to induce him, if possible, to persuade his copartners to unite with him in a judgment; which would give the bank a further security for its debts by a lien upon their real property in this state. I can well see then, that he was indeed “mortified as well as vexed,” when he supposed Hoffman, and his friend Love had kept out of the way to avoid seeing him. This letter, therefore, was probably written to remove the impression that the cashier had visited Philadelphia to press Hoffman for the debts due the bank. And most of it may be considered what is vulgarly called soft sadder. This letter was probably forwarded to Erwin Centre/ and was received there by Hoffman previous to the giving of the bond and warrant; and if so it had the effect intended, of uniting him to the purposes of the cashier. •

But there is nothing in this letter from which it can be fairly inferred that the cashier “ had intended to suggest” the giving Of a judgment for any thing more than was honestly due from

From the evidence in the case I am not prepared to say that the chattel mortgage upon the lumber at Port Deposit was a full and ample security, even for the eight notes and drafts mentioned therein. And it was no security whatever for these three notes on which Joel Hoffman’s name appears. Upon the whole, I think the vice chancellor was right in supposing that the defendants had failed in showing that the judgment of the 10th of October, 1834, was fraudulent and void as against the defendant banks, and other creditors of Hoffman & Mersereau.

No one can justify the gross and deliberate fraud which was practised upon the defendant banks, in inducing them to give up the paper which they held against Hoffman & Mersereau, and to allow an extended credit for the greater portion of their debts, upon the supposition that they were obtaining valid securities, by mortgage, upon the real estate of their debtors, free from all prior incumbrances. And the fact that such a fraud was committed, and that Hoffman was the principal therein, detracts very much from the credit to which he might otherwise have been entitled as a witness. But as the Bank of Utica and its officers had no knowledge of, and no participation in that fraud, it can only affect that bank so far as it affects the character of the principal witness of the complainant in this suit.

I think the evidence in the case fully establishes the fact that the Bank of Utica, by its agents, accepted of the chattel mortgage, which was executed by two of the members of the firm of Hoffman & Mersereau. Whether the mortgage was valid to convey the interest of the copartnership to the complainant, in the form in which the mortgage was executed, is a question upon which it is not necessary to express an opinion. But even upon the supposition that the property was properly pledged to

But as a part at least of the debts secured by the judgment, which were not embraced in the chattel mortgage, would still have remained unpaid, the complainant, even in equity,'would still have acquired a good title to the premises in controversy in this suit; for the recovery of which premises this ejectment bill has been filed. The only remedy for the defendant banks, therefore, was by a cross bill, or more properly an original bill, on their part, to recover a part of the proceeds of the sheriff’s sale ; or for an account and payment of so much of the proceeds of the sale of the mortgaged lumber as the complainant might with proper diligence have secured and applied to the payment of the judgment, after notice received of the-equitable rights of the defendant banks by reason of their mortgages upon the premises in controversy.

For these reasons the decree appealed from must be reversed and modified, as before suggested, in relation to the suppression of the testimony of Hoffman and of Cotton; and it must be affirmed in all other respects. Neither party having succeeded fully upon these appeals, it is not a proper case to give costs upon such appeals to either party against the other. And as it appears from the defendant’s notice of appeal, that they gave security, as required by the revised statutes, to stay the complainant’s proceedings pending the appeal, the usual directions must be given for the payment, by the Steuben County Bank, and the Chemung Canal Bank, of the value of the use and occupation of the premises during the pendency of the appeal; and for any damages which the complainant may have sustained by the commission of waste in the meantime.