Parish v. Gates

STONE, J. 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 — 260 — to any particular litigation, and without any other reference to litigation generally than all human affairs have, in so far as every transaction may, by possibility, become the subject of judicial inquiry.” The rule is founded on public policy. It was adopted “out of regard to the interests of public justice, which cannot be upholden, and to the administration of justice, which cannot go on, without, the aid of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. -If the privilege did not exist at all, every one would be thrown on his own legal resources. Deprived of all professional assistance, a man would not venture to consult any skillful person, or would only dare to tell his counselor half his case. If the privilege were confined to communications connected with suits begun, or intended, or expected, or apprehended, no one could safely adopt such precautions as might eventually render any proceedings successful, or all proceedings superfluous.”— Greenough v. Gaskell, 1 Mylne & Keene, 98. 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 — 261 — ho wished concealed from the other: neither sought or obtained any advice upon any subject, so far as we are informed. They had a common design ; he was conveyancer in common for both ; and, so far as these parties are concerned, their joint statement of the terms of the contract, under the circumstances shown in this case, was not a privileged communication. By selecting the same attorney, and mating their communications in the presence of each other, each party waived his right to place those communications under the shield of professional confidence ; and in asserting their rights under the contract, each is entitled to a disclosure of its stipulations. Warde v. Warde, 5 Eng. Law & Equity, 217. 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 — 262 — as to entitle the complainant to relief.' Conditional sales are not favored in law. In all cases of doubt, the court inclines in favor of mortgages. The general tests, in doubtful cases, are the adequacy, of consideration, and the continuance or extinguishment of the debt. It was well said in argument, that there is no mortgage, where there is no debt; there is no conditional sale, where the debt remains unextinguished. The testimony of the witness, McKinstry, proves to our satisfaction, that Parish was to repay to Redus the amount Redus should pay to the Bank. The witness employs no word, or sentence, implying doubt or contingency. His words are, “ Parish should repay to Redus.” This proves a continuing debt from Parish to Redus. There are other facts and circumstances which tend to show Parish’s continuing interest in the slaves. ■ He remained in possession and control oí them. He conveyed five slaves to secure the payment of thirteen hundred dollars ; when the proof tends to show that, they were worth greatly more money. The proof that a mortgage was intended is quite as clear in this case as it was in English v. Lane, supra; and we feel bound to declare the contract a mortgage. 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.,