1. Communications made by a client to an attorney at law whilst employed in that capacity, are privileged, and are inadmissible in evidence, though, at the time such communications were made, judicial proceedings may not have been commenced or contemplated.
2. The use of the words bona fide, in instructions given to a jury, will not vitiate them.
3. A conveyance may be for a valuable consideration, and yet be fraudulent and void as against creditors.
Appeal from St. Louis Circuit Court.
This was an action in the nature of an action of ejectment for the possession of a lot of ground in the city of St. Louis. It appeared in evidence that on the 22d of April, 1837, one David Sheppard conveyed the lot in controversy to James H. Johnson and Madison Y. Johnson; that on the 25th of April, 1837, James H. and Madison Y. Johnson conveyed the said lot to their mother Hannah Johnson, the original plaintiff in the present suit, for life, with remainder to their sister Isabella in fee; that all the title, acquired under the last mentioned deed, had, by various mesne conveyances and descents cast, become vested in the said Hannah Johnson. Defendants claimed title to the premises in controversy under a sale on execution, on the 10th of July, 1838, and a sheriff's deed under a judgment against James H. and M. Y. Johnson. In the suit in which this judgment was obtained, the lot in controversy was attached at the suit of a creditor of the firm of J. H. and M. Y. Johnson, the affidavit charging that the defendants were about fraudulently to dispose of their property and effects. The attachment was levied October 13th, 1837, and there was personal service and judgment by default. Much testimony was introduced by defendants tending to prove that the conveyance above mentioned by J. H. and M. Y. Johnson to their mother Hannah Johnson, was fraudulent as against their creditors; that soon after the date of that deed, to-wit, in July, 1837, the said J. H. and M. Y. Johnson failed in business and became insolvent. There was also evidence tending to prove that the money paid by J. H. and M. Y. Johnson to Sheppard as the consideration for the conveyance of Sheppard to them of April 22d, 1837, was furnished by their mother, Hannah Johnson, and that they were indebted largely to her at the date of that conveyance.
Trusten Polk, an attorney at law, was introduced as a witness by defendants, and, having stated that he was employed in his professional capacity to draft the deed of April 25th, 1837, to Hannah Johnson, the plaintiff, was asked to state the communications made to him on that occasion by J. H. Johnson. The court, on the objection of plaintiff, excluded the testimony offered as being privileged communications; also excluded communications made by the said J. H. Johnson to T. B. Hudson, an attorney at law, on the occasion of his being employed by the said Johnson to prepare his insolvent papers for him.
On plaintiff's motion, the court instructed the jury as follows: “1. If the jury believe from the evidence that on or about the 4th day of September, 1853, David Sheppard was in possession of the lot in controversy, and made to James H. and Madison Y. Johnson the instrument evidenced by the certified copy thereof read in evidence, dated September 4th, 1835, and thereafter and by virtue thereof he delivered the possession of said lot unto said Johnsons; that thereafter he made unto said Johnsons a deed of conveyance of said lot, evidenced by the certified copy thereof, read in evidence, dated April 22d, 1837; that thereafter the said Johnsons made to Hannah Johnson and Isabella Johnson the deed read in evidence, dated April 25th, 1837, and that said Hannah and Isabella took said deed bona fide and for a valuable consideration; that thereafter Joseph Johnson and Hannah Johnson made to the said Isabella the deed read in evidence, dated April 10th, 1843, and that said Joseph was the husband of the said Hannah; that thereafter Fletcher Dorey and the said Isabella executed the deed read in evidence, dated December 13th, 1845; that thereafter the said Fletcher and Isabella were married, and thereafter the said Joseph and the said Fletcher died, and thereafter the said James H. and Madison Y. Johnson and Isabella L. Dorey made to the said Hannah the deed read in evidence, dated January 5th, 1849, and that the said James H. and Madison Y. Johnson and the said Isabella were the children and the only children of the said Joseph at the time of his death, and that all of said deeds embrace the same property in controversy in this suit, then they should find for the plaintiff. 2. If the jury believe from the evidence that James H. and Madison Y. Johnson made to Hannah and Isabella Johnson the deed read in evidence, dated April 25th, 1837, for a valuable consideration and bona fide on the part of the said Hannah and Isabella Johnson, then they will disregard all the acts and words of said James H. and Madison Y. Johnson, and of each of them, said or done subsequently to the giving of said deed, and prejudicial to their rights thereunder, except such as have been proved to have been said or done with their knowledge and consent; and if they believe from the evidence that the letter of said M. Y. Johnson, read in evidence, was written subsequently to the giving of said deed, and that said deed was taken by said Hannah and Isabella bona fide and for a valuable consideration, then said letter can be no evidence to the injury of their rights under said deed. 3. No fraud proved upon James H. and Madison Y. Johnson, or either of them, can affect the plaintiff's claim to the property sued for in this case, if the said Hannah and Isabella took said deed of James H. and Madison Y. Johnson to them, read in evidence, bona fide, and for a valuable consideration. 4. If the jury believe from the evidence that at the time when James H. and Madison Y. Johnson made the deed to Hannah Johnson, they owed her the amount of the purchase money paid to Sheppard, or that the money paid to Sheppard was hers, there was no fraud in their making the deed to their mother, even if they knew at the time that they would fail, and that their creditors would, in consequence thereof, lose their debts, or even if they intended otherwise to defraud their creditors. 5. Fraud is not to be presumed; but when charged, it must be proved to a jury before they are authorized to find it, and may be proved from facts and circumstances. 6. A debtor, knowing himself to be insolvent, or about to become insolvent, has a right to prefer one creditor to any and all others, although such preference for the payment of the preferred creditor shall take all the means that he has. 7. If the jury find for the plaintiff, they should allow her for damages the value of the rents and profits of the property sued for since the month of May, 1849, according to evidence, not exceeding, however, the sum of nine hundred dollars, and should find the monthly value of the rents and profits of the premises sued for.”
The court, on the motion of defendant, gave the following instructions: “8. If, at the time of the execution of the deed from James H. and Madison Y. Johnson to Hannah and Isabella, the said Madison Y. and James H. Johnson were greatly indebted and on the verge of insolvency, and soon after became utterly insolvent, viz., in the summer or fall of the same year, and that the said deed to said Isabella and Hannah was made without any valuable consideration and merely to secure a living to the said Hannah and Isabella, then the title, under the sheriff's deed to Gamble, read in evidence by defendant, is a better title than that under the said deed to Hannah and Isabella Johnson. 9. If testimony of a witness is such, or his conduct shown in evidence is such, as to satisfy the jury that such witness is destitute of moral principle, the jury may disregard his testimony, although he is not impeached by proof from witnesses that he is unworthy of belief on his oath.”
The jury found for plaintiff; defendant appealed.
H. R. Gamble, T. T. Gantt and Glover & Richardson, for appellant.
I. The testimony of Trusten Polk was improperly excluded by the court. (Aiken v. Kilburn, 27 Maine, 252; Foster v. Hall, 12 Pick. 98; Hutton v. Robinson, 14 Pick. 421.)
II. The 4th instruction was calculated to mislead, and should not have been given.
III. The use of the words “ bona fide,” in the...
