Hull v. Lyon

Scott, Judge, delivered the opinion of the court. The act concerning witnesses prescribes that an attorney shall be incompetent to testify concerning any communication made to him by his client in that relation or his advice thereon, without the consent of such client. (R. C. 1855, p. 1578.) Though Hull, the plaintiff, had an interest with Moore in the matter about which the common attorney was consulted, he had no right to any communications Moore might have made. The aim of the evidence was to affect Moore and those claiming under him. Any information Moore may have communicated, or any facts he may have stated, or admissions he may have made, to his attorney, can not be disclosed at the instance of one who had a hostile interest in the subject of the consultation, although he attended’it and employed the same attorney to advise as to his rights and interests in the matter about which they consulted. The consent of both parties was necessary to make the attorney a competent witness. Whether a communication is a privileged one is a question for the court. We do not see in what way the defendants were affected by the omission of the court to declare the interests of the parties to the land as established in the partition suit of J. N. Moore v. Hull et al. If they were subjected to the payment of no more of the mortgaged debt than their interest in the land was subject to, they have no cause of complaint. In the partition suit referred to, Hull set up the mortgage and prayed the benefit of it. Hull was not bound to do this, and his failure to do it would not have affected his rights. But notwithstanding this, if he did set up his mortgage and it was determined against him, he, it seems, would be bound by the judgment. (Thompson v. Wineland, 11 Mo. 243.) A mortgagee is not compelled to notice the partition of premises on which he has a mortgage, only so far as in a proceed [577] ing to foreclose be must see that the proper parties are brought before the court. McCune denied the existence of the mortgage debt, and nothing more is disclosed in relation to the matter. Under such circumstances, the record at most would furnish only prima facie evidence that the matter was passed upon by the court. It would be competent to show by parol evidence that, although stated in the pleadings, yet in fact the matter never was submitted to the determination of the court. (State v. Morton, 18 Mo. 53.) But the difficulty in relation to this is .that McCune is no party to this suit.. This is insisted on by him in this court. How then can he have the benefit of an estoppel, created by a judgment in one suit, in another suit to which he is no party ? The interest of McCune and YanDeventer in this litigation arose at the time they made the contract to purchase Lyon’s interest. Whatever benefit may be derived from the doctrine of relation as between the parties to the agreement to purchase, in determining the question whether they were proper parties to this suit we can only look at the date of the contract by which they became interested. We do not conceive that there is any thing in the point that Hull is estopped by the judgment in partition from asserting his right under the mortgage. Owners of the equity, of redemption may have partition among themselves, but mortgage and judgment creditors can not be compelled to join in it. (Wotten v. Copeland, 7 Johns. Ch. 140; Sebring v. Mersereau, Hopkins, 501.) Our statute is silent as to making mortgagees parties to a proceeding for partition. If McCune and VanDeventer are not parties to this suit, and should have been made so, they will not be affected by it, and they have no right to appear here and raise objections. It is remarkable they did not have themselves made parties, as they might have done under the sixth section of the act concerning mortgages. The decree of the court below is inconsistent with itself, as it subjects the interest of Alexander Moore in those claim [578] ing under R. N. Moore to sale, and exempts from contribution that portion of Alexander Moore’s interest which is in the plaintiff. The court does not find that there was any equity existing as between R. N. and Alexander Moore, which would subject R. N. Moore’s interest alone to the satisfaction of the entire debt as against a purchaser of R. N. Moore’s interest. The mortgage subjected the entire interest of R. N. and A. Moore to the payment of the debt. Why should a purchaser of R. N. Moore’s interest be compelled to pay the entire debt ? The facts in relation to this matter are not found, nor is any thing said in relation to notice of any equity. It does not appear that the decree is based on the circumstance that Alexander Moore was the endorser of the note — a matter about which no opinion is ventured, as it was not discussed in the argument. If the interest which R. N. Moore originally mortgaged is alone liable for the mortgage debt, it is a matter of no importance in this suit that interests subsequently acquired by those who hold Moore’s original interest are likewise subjected to the payment of the mortgage debt, as it appears that the original interest itself greatly exceeds in value the amount of that debt. If the original interest had been insufficient to pay the debt, the injustice of subjecting the after acquired interest would be apparent. The error is entirely a formal one, not at all affecting the rights of the parties. Reversed and remanded, the other judges concurring. Richardson, Judge. In my opinion, the form of the note prima facie indicated the character of the relation of the parties to it, and if R. N. Moore was the principal debtor it would not be inequitable to charge the whole debt on his interest. But if any portion of A. Moore’s interest is subjected to the mortgage, the whole interest should be, and the burden ought not to be cast on McCune and VanDeventer, who own only a small part of it. The judgment is inconsistent with the theory on which the cause was decided; and as [579] there is nothing in the record to show the value of the interest of McCune and VanDeventer acquired, from R. N. Moore’s estate, which he owned at the date of the mortgage, the judgment should be reversed because it is not confined to that interest. I give no opinion on the other points noticed in the opinion of the majority of the court.