List's Ex'x v. List

• Decision Date: 14 October 1904
• Citation: 82 S.W. 446
• Parties: LIST'S EX'X v. LIST et al.
• Court: Kentucky Court of Appeals

82 S.W. 446

LIST'S EX'X v. LIST et al.

Court of Appeals of Kentucky.

October 14, 1904

Appeal from Circuit Court, Kenton County.

"Not to be officially reported."

Action by Ferdinand List's executrix against George List and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

M. L Harbeson, for appellant.

H. D Gregory, for appellees.

SETTLE J.

On June 22, 1886, the appellee George List executed and delivered to his father, Ferdinand List, his note for $6,000, with 6 per cent. interest, payable three years after date. To secure the payment of this note, appellees George List and Minnie List at the time it was given, executed to Ferdinand List a mortgage upon the undivided one-half interest of the mortgagor in a certain described lot in the city of Covington, "and also all machinery, appurtenances and property of every kind and description that now is or may hereafter be brought or placed on the lot of ground above described, and all additions to such machinery, apparatus or property, that may hereafter be made or placed upon said premises, and all improvements that may be made of or upon said premises, or anything thereon." The mortgage contains, in addition to the usual stipulations providing for its enforcement in case of default in the payment of the note and interest, a stipulation requiring the mortgagor to keep the property insured for the benefit of the mortgagee, and also the following covenant: "This mortgage covers the rents, issues and profits of said property and premises ***" The mortgage was duly acknowledged by the mortgagor on the day of its execution, and immediately delivered to the mortgagee, who thereupon had it placed to record in the proper office.

In January, 1901, Ferdinand List departed this life, testate, domiciled in Kenton county, this state. His will was admitted to probate at the February term, 1901, of the Kenton county court, and duly recorded in the office of the clerk of the county court. Elizabeth List, wife of the testator, was, by the provisions of the will, appointed executrix, and on the day of its probate she gave bond and duly qualified as such in the county court. The note and mortgage of $6,000, which appellee George List had given the testator, went into the hands of the executrix with other assets belonging to the estate; and the same being unpaid, and its payment refused by appellee, this suit against him and wife was brought by the executrix in the Kenton circuit court to recover the amount of the note, and to enforce the lien given by the mortgage to secure its payment. The answer denied the liability of appellee George List, and averred his discharge from such liability by written release from Ferdinand List, alleged to have been executed August 21, 1900. The reply of the executrix pleaded non est factum and no consideration. After the taking of much proof in the form of depositions the case was submitted to the chancellor, who rendered judgment to the effect that appellee George List had been discharged from liability upon the note and mortgage by the written release filed with his answer; consequently appellant's action was dismissed at her cost. Of that judgment she bitterly complains, asking its reversal at the hands of this court. It is insisted for appellees that, as no motion for a new trial was made in the court below, the only question before this court on the appeal is as to whether the pleadings support the judgment.

The action was one in equity. The recovery of a personal judgment for the amount of the note in controversy was only a part of the relief sought. The enforcement of the lien given by the mortgage to secure the payment of the note was also sought. Only courts of equity have jurisdiction to enforce liens. No motion for a new trial or separation of law and facts is required in an equity action to bring the whole case before this court. Nor is this rule of practice affected by the fact that the parties might have caused some question of fact in the case to be tried as an issue out of chancery. Salyer v. Arnett, 62 S.W. 1031, 23 Ky. Law Rep. 321; McCormick Machine Co. v. Martin, 51 S.W. 1021, 21 Ky. Law Rep. 309. This case must therefore be considered as properly before us, and we shall so treat it.

The errors complained of are (1) that the chancellor erred in rejecting certain evidence offered by appellant; (2) that he erred in refusing to require R. C. Simmons, an attorney, to answer certain questions asked him; (3) that the chancellor further erred in admitting certain incompetent evidence; (4) that the judgment of the chancellor was unsupported by and is flagrantly against the evidence.

The evidence referred to in the first ground, and which was excluded by the chancellor, was offered by appellant through the witnesses M. O. Todd and W. J. Sanford. By Todd it was attempted to be proved that E. J. Newman, the draftsman of the written release alleged to have been given appellee George List by his father, was a defaulter while in Todd's employ; and by Sanford, a lieutenant of the police, appellant attempted to prove that Newman was arrested for failing to provide for his family, and that judgment against him was suspended upon his promise to do so. To prove the same fact appellant also offered in evidence the records of the Covington police court. We think the chancellor properly excluded this evidence.

It is well settled that the reputation of a witness cannot be impeached by proof of specific acts of wrongdoing on his part. Civ. Code Prac. § 597. Appellant offered to prove by Simmons, who it was avowed would so testify, that appellee George List, after the death of his father and about the time this suit was brought, requested him (Simmons) to see the executrix and children of F. List, deceased, his (appellee's) mother, brothers, and sisters, and ask them to release him from his indebtedness upon the note and mortgage sued on, and that the witness did in fact communicate this request to the persons named. Appellant also offered to prove by the same witness that, after failing to secure of the executrix and children of F. List the release of appellee from the debt, he, at the latter's request, went to them the second time, and also to their attorney, and proposed to them that appellee would convey to them by deed the mortgaged property in payment and satisfaction of the note, which they refused to agree to. Simmons refused to testify concerning these matters upon the ground that, at the time they were received from appellee he was his attorney, and that the requests and communications were made to him because of that confidential relation. The examiner before whom his deposition was offered to be taken, and the chancellor to whom the examiner referred the matter, excused Simmons from giving the testimony in question upon the ground indicated. We are of the opinion that both the examiner and chancellor erred in this ruling. We do not think communications of the character named can be regarded as privileged. It was not denied by George List that they were made to the attorney for the express purpose of his conveying them to the persons for whom they were intended. The attorney was purposely selected by appellee as a mouthpiece and go-between, and the messages he was directed to deliver to the other parties possess none of the requisites of a confidential communication, to protect which the rule was designed. In A. & Eng. Enc. Law, vol. 19, p. 139, it is said: "Nor does the rule of privilege protecting confidential communications extend to communications between solicitors of opposite parties. Communications made by a party to a suit to an attorney, to be communicated to the adverse party, are not privileged." Greenleaf, Evidence, § 245. We do not agree either with the contention of appellee's counsel that the communications in question should have been excluded because they were in the nature of offers to compromise. The defense interposed was that appellee had been discharged from the debt sued on by a written release from his father, which was denied. Any fact that would tend to prove that the release is not true or genuine, such as an admission of appellee's indebtedness, or an offer to pay it, would be competent as an independent admission of fact. In a note found in volume 1, p. 221, Greenleaf on Evidence, it is said: "The American courts have gone further, and held that evidence of admission of any independent fact is receivable, though made during a treaty of compromise. ***"

In considering the main question in this case, viz., whether or not the judgment of the court is supported by the evidence it will be well to ascertain what weight should be given the finding of a chancellor on a question of fact. In the case of Edwards-Barnard Co. v. Pflanz, 73 S.W. 1018, 24 Ky. Law Rep. 2296, in discussing this subject, it is said: "It will be observed that this action is purely an ordinary or common-law action, and it is a well-known rule in such cases that the judgment of the chancellor will be as favorably regarded as would be the...