Jackson ex dem. Haverly v. French — 3 Wend. 337

Majority

p. 337

Jackson, ex dem. Haverly and wife, vs. French.

Headnote

T*le privilege of not disclos. ingacommun^^“clienTto counsel is con.' ^^to^n"interpreter, th° rule1 might clerks of coun-

in no wayconWlt}1 present at atio^mde’to him by a client testify!™11 t0

Where a per-to the posses?io,n ?f landbelongmg to his father-in-law, who pro-raised to give he land to him hm súbiquentlybywill ^m'e^to the wife, u wa* tion of eject-hf the wife, that tinuanceunder a conveyance from the husband was not adverse; and that a conveyance to the husband from the ancestor could not be presumed. Notice to quit not necessary where there is no tenancy in fact, and especially where the defendant disclaims to hold as tenant.

This was an action of ejectment. The plaintiff claimed J r to recover the equal undivided fourth part of a lot of land situate in the county of Saratoga. Nicholas Visscher, the maternal grandfather of the wife of Haverly, was the owner of the lot in question, and by his last will and testament bearing date 30th June, 1778, devised the same to his daughter-Margaret, the wife of John Wemple. Wemple and wife had four ch'ldren, of whom th e" wife of Haverly was one. Margaret Wemple died 12 or 14 years before the trial, and John Wemple died 5 or 6 years before the trial. It was proved that the defendant had acknowledged that he had purchased the land of John Wemple, This fact was shewn by the timony of a witness who was present, and heard such acknowledgement when the defendant was stating his case to counsel, the witness and the defendant being both in possession of the same lot, and suits having been commenced against them by the lessors of the plaintiff for the recovery of the land, they together called upon counsel, in which interview the acknowledgment was made. This evidence was objected to ° , . iii, by the defendant, but the objection was overruled by the presiding judge. ° J °

. _T. On the part of the defendant it appeared, that Nicholas Visscher, in his life time, promised to give the lot in question to Wemple and wife; that Wemple, during the life time of Visscher, entered into the possession of, and rented out the lot. The defendant had been in possession 36 years claiming the lot as his own.

The judge at the circuit ruled that Wemple was tenant by the curtesy, and that on, his disease his children were entitled to the possession; that if Wemple entered into pos

p. 338

session of the lot under the parol permission of Visscher, he wgg a tenant at will, and the defendant having entered under Wemple stood in the same relation, and that, under the circumstances of the case, the defendant was not entitled to notice to quit. A verdict was found for the plaintiff which was now' moved to be set aside.

M. T. Reynolds, for défendant.

Confidential communications to attorneys and counsel by their clients are privileged ; and if the attorney or counsel cannot betray them, no one else can. Here the communication was made to counsel. An attorney’s clerk, who is present when a communication is made to his principal, cannot be examined. (11 Com. Law. R. 466. 12 id. 85. 1 Peters’ Cir. R. 366. 6 Esp. 113.) The relation in which the witness and the defendant stood to each other at the time of the communication, ought to entitle the defendant to the protection of this rule óf evidence.

An adverse possession was shewn. Wemple entered into possession, previous to the death of Visscher, under a promise that the land should be given to him. A parol gift is as effectual to support an adverse possession as a parol conveyance. (13 Johns. R. 120. 6 Cowen, 632.) Resides a conveyance may here be presumed.

If the defendant could be considered as a tenant at will, he was entitled to notice to quit.

D. Cady, for the plaintiff.

A communication intended to be confidential, should not be made in the hearing of third persons. Where a necessity exists that another should be made privy to the communication between the client and his counsel, as where axiinterpreter must be resorted to, there is reason in the rule for extending the privilege; not otherwise.

There can be no adverse possession in this case. The property ■ was devised to the wife of Wemple in 1778. She ■died but 14 years!since. Her husband could not hold adversely to her, nor could any one deriving title from him. There is no fact or circumstance on which to found the presumption of a conveyance. The defendant was not entitled to notice ■to quit.

p. 339

By the Court,

The counsel himself canaot disclose a communication made to him by his client relative to a case in which the relation of client and counsel exists ; but that privilege is confined to counsel, to an interpreter, and perhaps to the clerks of an attorney or counsel, though as to the latter the cases differ. But if a party makes communications to counsel in presence of persons in no way connected with the counsel, such persons are bound to disclose what they may have heard.

The fact being shewn that the defendant held under Wemple, the question arises, could his possession be adverse as against the lessors ? I think not. The property belonged to Wemple’s wife, and having issue, it was his during his life; at his death it went to the heirs of his wife. Under such circumstances the possession is not adverse.

It is contended that the court are bound to presume a conveyance by deed from Visscher to Wemple and wife. Did nothing appear in the case as to Yisscher’s disposition of the lot subsequent to his promise to -convey, perhaps such presumption might legitimately be made; but it appearing that the promise was fulfilled by a devise of the property, the court cannot presume that the testator would have made such devise after he had given a deed to his daughter and her husband. The presumption, therefore, is the other way. The judge decided that Wemple was tenant at will, and so I think he was during the life of Visscher, who might have dispossessed him or French at pleasure. And the defendant was not entitled to notice to quit; 1. Because he had disclaimed any tenancy, by claiming to be the owner of the premises; and 2. Because in fact when the suit was commenced nothing like a tenancy existed. After the death of Visscher, Wemple or his grantee had an estate for the life of Wemple, and at his death the property vested in the heirs of Wemple’s wife, who died before her husband.

The plaintiff is entitled to judgment for one fourth part of the premises.