Hull v. Lyon

• Decision Date: 31 October 1858
• Citation: 27 Mo. 570
• Parties: HULL, Respondent, v. LYON et al., Appellants.
• Court: Missouri Supreme Court

27 Mo. 570

HULL, Respondent,

v.LYON et al., Appellants.

Supreme Court of Missouri.

October Term, 1858.

1. Communications made to an attorney at law, as such, are privileged, and the attorney cannot be permitted to testify concerning them without the consent of the client. This rule applies to the case where two persons, having hostile interests, consult the same attorney, at the same time, with respect to the matter in dispute, and one of such parties calls upon the attorney to testify with respect to the declarations and admissions made by the other at the consultation.

2. Whether a communication is a privileged one is a question for the court.

3. A mortgagee is not bound to notice the partition of the mortgaged premises in a suit instituted for that purpose. If, however, in a partition suit, in which he is a party defendant in right of his wife, he should set up his mortgage, and an issue joined with respect to the existence of the mortgage should be determined against him, he would, it seems, be bound by the judgment. If no more appears from the record than that the mortgage was set up by the mortgagee, that issue was taken as to its existence, and that no notice was taken of the mortgage in the interlocutory or final judgments, the record would furnish only prima facie evidence that the question of the existence of the mortgage was passed upon; it might be shown by parol evidence that the question was never actually submitted to or passed upon by the court.

4. Where, during the pending of a suit to foreclose a mortgage, third persons become interested in the premises by purchase, it is not necessary, in order to authorize a decree against them in respect of the interest acquired by them, to make them parties to the suit; they may be made defendants, on their own motion, under the sixth section of the act concerning mortgages (R. C. 1855, p. 1089).

Appeal from St. Louis Circuit Court.

This was a suit commenced by Joseph S. Hull on the 8th November, 1852, to foreclose a deed of trust executed April 17, 1841, by Robert N. Moore and Alexander Moore, to secure the Bank of Missouri the payment of a note drawn by Robert N. Moore, and endorsed by Alexander Moore, and discounted by said bank, and to secure the payment of any note that might be given in renewal of the same. The petition stated that after several renewals of the original note, Robert N. Moore executed his note for $1,843.34, dated December 23, 1842, which was endorsed by Alexander Moore and by the plaintiff, Joseph S. Hull, and discounted by the Bank of Missouri in renewal of the first note; that this note was not paid at maturity, and was protested; that the plaintiff, Hull, at the request of Robert N. Moore, paid said note to the bank on the 12th of November, 1848, and received an assignment of the deed of trust on the 15th of November, 1848. The land conveyed by said deed of trust was the undivided two-thirds of a tract of three by forty arpens. The petition further stated that Robert N. Moore was dead, having devised his property to his widow, Anna M. Moore, who afterwards married James M. Lyon; that Hugh A. Garland was executor of said Robert N. Moore; that Alexander Moore died, leaving as his heirs Elizabeth Hull, said Robert N. Moore, Julia N. Moore and Elizabeth Moore; that Elizabeth Moore was also dead; that Julia N. Moore was an infant; that by order of the Probate Court the title and estate of Robert N. Moore in the premises had been sold, and that James M. Lyon became the purchaser, but had not paid the purchase money, and a deed had not been made.

The parties to this suit originally were James M. Lyon and Anna M., his wife, Julia N. Moore, and Hugh H. Garland, executor of Robert N. Moore. Afterwards, Julia N. Moore marrying David C. Hall, and dying, leaving a daughter, said Hall and daughter were made parties. Garland also died, and the administration de bonis non of Robert N. Moore and of Alexander Moore were made parties. The defendants put in issue the allegations of the petition, alleging that Robert N. Moore had himself paid the note described in the petition. The court submitted to a jury an issue whether the plaintiff had paid the note to the bank with his own money. Upon the trial of this issue, Judge Lord was called as a witness in behalf of the plaintiff. He testified that both Hull, the plaintiff, and Robert N. Moore came to the office of Leslie & Lord for advice about this note and deed of trust, and the transfer to plaintiff. He was required, against the objection of the defendants, to testify concerning statements made by Moore at that interview. The jury found the issue for the plaintiff.

The court, in its finding, found substantially the execution of the deed of trust and note as alleged; that plaintiff paid the note at the request of R. M. Moore, and took an assignment of the note and deed of trust; that at the institution of this suit he was the holder thereof for value. After the death of said Robert N. Moore, and before the institution of this suit, on the 17th of November, 1851, the right, title and interest of Robert N. Moore in said tract was sold, under the order of the Prodate Court, to James M. Lyon. Lyon not being able to comply with the conditions of sale, John S. McCune and Peter L. VanDeventer were substituted, and received a deed from Hugh A. Garland, dated September 21, 1853. It also appears that at the October term, 1853, of the St. Louis Land Court, Julia N. Moore instituted a suit in partition against Joseph S. Hull and his wife Elizabeth, James M. Lyon and Anna M. his wife, Peter L. VanDeventer, John S. McCune and George W. Putnam; that in this suit partition was made according to the respective rights of the parties. The commissioners assigned to McCune and VanDeventer, for the interest acquired by them under the above deed of the executor of Robert N. Moore, certain lots designated as lots numbered 1, 2, 4, 5 and 6. McCune and VanDeventer were also required to pay said Elizabeth Hull the sum of $300 to equalize the difference in the value of the lots assigned to said McCune and VanDeventer and those assigned to said Elizabeth Hull. This partition was made at the October term, 1855, of the St. Louis Land Court. In his answer in this suit, said Hull set up his claim under the deed of trust. McCune and VanDeventer denied the existence of this claim. Judgment for partition was given without reference to it. It also appeared from the finding that, after said petition was made, said Elizabeth Hull died, leaving her surviving two children. Joseph S. Hull instituted proceedings against his said children for partition of that part of said three by forty arpent tract that had been assigned to said Elizabeth Hull. Such proceedings were had in this suit that partition was made, and under the judgment of the court the land was sold and the plaintiff became the purchaser.

The court ordered a foreclosure, in behalf of plaintiff, of the deed of trust in respect to those portions of the three by forty arpent tract that had been assigned to McCune and VanDeventer in the partition suit above mentioned, and ordered the sale of said lots numbered 1, 2, 4, 5 and 6.Whittelsey, for appellants.

I. The court erred in permitting Judge Lord to testify. The communications made to him were privileged, although the same attorney was consulted by both parties. (1 Greenl. Ev. §241, 240; 2 Stark. Ev. 229; Cromach v. Heathcote, 2 B. & B. 4; Parker v. Carter, 4 Munf. 273; Wilson v. Troup, 7 Johns. Ch. 25; Doe v. Seaton, 2 Ad. & El. 171; Doe v. Watkins, 3 Bing., N. C., 421.)

II. Hull having failed to establish his mortgage in the partition suit, the question became res adjudicata. (2 Johns. 210; 12 id. 313; 2 Conn. 435; 5 Wend. 245; 3 Johns. 220; 7 Cranch, 557; 5 Hill, 114; 9 Cow. 271; 1 Watts, 149; 8 Mo. 120.) The finding was erroneous in declaring that McCune and VanDeventer (who are not parties to the suit) purchased after the commencement of this suit. As they took the place of James M. Lyon, their purchase goes back to the date of his purchase, September 18, 1851. The court also erred in not declaring what were the interests of the parties as established in the Land Court in the partition of Julia N. Moore v. Hull and others. The court also erred in finding that the interest set off in the partition suit to McCune and VanDeventer was that which Robert N. Moore had in the whole tract at the date of the deed of trust. One-ninth descended from Alexander Moore; four-ninths of said tract belonged to R. N. Moore at the time of his death.

III. Plaintiff submitted to a partition of these lands in fee, and is estopped from destroying the effects of this partition by selling the property, part of which his wife inherited, and which he now holds by purchase at a partition sale based upon the previous partition. A proper sale under the deed of trust would divest the title of two-thirds of the land, and thus enforce a new partition. (6 Verm. 395; Phelan v. Kelly, 2 Wend. 389; Jackson v. Streeter, 5 Cow. 529; Jackson v. Hinman, 10 Johns. 292; Vanhorn v. Fonda, 5 Johns. Ch. 406; Picot v. Page, 26 Mo. 398; 3 Dana, 326.) The judgment is also erroneous in that it directs the shares...