74
pyr er9E!s.iI;l.tetrogatp)'i ,
in p.dvance, rbut suggeated,u POD the an!t ,extr!tordillur}'. If its l;L1lowllUpeia ;within' thedispretiPD of the¢Qn.rt,stlch disoretion should only, ,be exerro&ed when a of necessi1iyjs,.made out., There is nothing in the papers lilubmitte(tto indicate,theexisteneeof spch necessity., The name, residenqe" Of personal lloPIleaI'aBce of the supposed agent, the circumstances attending his visit, and his !!tatements as to himself and his business. so fll-r are within the knowledge of the witness, can surely be elicited from. the prepared in: the usual way.
AltNoLn :et' al. v.
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CHESEBBOUGH
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et cd.
(OWcwl.t Oourt, E. D. Nf'/W York. July 16,1886.) ATTOBNBT AND CLIBNT-PRIVILEGED COMMUNICATIONS.
A 8ubprena duces teC'ltm will not be issued to compel the production by an attorneyof a letter given him by bis client as a paper material to bis defense, wbich the attorney declines to deliver on the ground of privilege, no reason appearing why such process cannot be served on the client. ,! '"')
GIn:'
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In Equity. On motion for a aubpama duces tecum. George Norris, fOf i plaintiffs. ,;,.,'" BliBB k Schley, for defendants.
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examinerand;the,mo'tionof the whether the attorney 'Qf the.' defendant Charles Augustus Chesebrough can, by a subprena dUces tecum, be combypne which the attorney received from his client a80I;l.fl oUbe to, his letter upon defense inthis action; the attorney .9J1clining the ground of privilege, and there being nothing m the case to show it to dtl-qu,tec11/ffl upon th!1 de£-epdapt, from, whom receiyed Jetter., . :Upon, this, gropnd..;my; opinion,is ,that Q9U:lpelled ,to . !: 'l··"r,·,
rf!
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ZQm.lfi(sUFPIClBNOY bi PltOOlr TO SmOR'!' A IiEcRBE lr6R ii RECONvJiYANOB, , :..,The, defendant; whlil';"'as1tenant' life; of' a .moiety ofcertatn r$&l estate, en",' W-,tP.,negotiatioq'iWWji ,the .of .the .· I tlie'com p lai..nal1t, for tlie" of theIr entire interest therj'ltn; and wrote to the ."11he.b8ir8) estate: have an agreed to' take $6;000, '!andthat, if IIhewoulll.ell her,inj;er.e1\t"the sarne .astlJ,e otbers," 4e would buy it, Relying pn thIs 'represeritatiop shecltitl'veyed ber the defendant. The proof was tbat . ;. two,oHhe;tenantil lb.eotnmbn ,had agreed, orallY,with ,the defendantro: Illlllthelr
to
'rij llhares as:the not'eonvey their shares to him until ,nearly a year,later·. defendan,t of about the same age, and had equal meat1sohtcqniring a knowledge of the factI!. Hela that, under all theoireullu'!tances, therewas'notsume1ent evidence uHlfi'OVe' aotual or oonstruotive fraud, ollwhioh to a,l1ecree for a recollv;eyanoe. , 2. SAME,-INADEQUAOY
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atlmant for life of theuudivided moilltybfan estate purchal!led fl'omthe tenants in common of the land their whole interest, including the reversion, for One of the tenants in oommon took in payment of his share ($1,000) of the consideration a small tract of land whioh had 1:Ielonged to tl).e estate, all(i !\Vhjch:he,soid, before conveyance to himself, for $1,425. Beld, in the absence of evidence that the whole estate would have sold for more than $6,OOO,:that inadequacy of price,.aufficient to induoe a court of equity to set aside the sale, was not proved. ThefMt that one tenant in oommon, on a resale of his share,- had obtained an increased price for it, does not prove that an inadequate price was paid for the share of another tenant in oommon, or for the collective shares. LAW.
911 PRICE.·
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8.
SAME-CONVEYANCE MADE UNDER A MISTAKE
One who was aunt of the half-blood. and cousin of the whole blood. to adeoedent, h.a.ving,lu.Rcoordanee ,with a legal opinlo11miaiuterpreting a Delaware,statute, 80" cepled.as her por.tion of the intestate's real estate suoh portion only as she was en. ti,tled to as cousin, with the heirs of the half-blood excluded, while she was also en· titled, by law, to a portion as aunt of the half-blood, and under erroneous advice, oonveyed away her. inheritance, has made a mistalt,e ol'liiw, and not a mistake of mixed law and fact, and will not be relieved, in. a court of. equity, by a decree for a reconveyance, where the b(i pll/oee.d in 8tatU quo.
Bill in Equity by Hannah M. Hamblin,against James R. Bishop, to Compel Reconveyance. AntJumyHiggins and II.: P. Htpburn, for complainant. Goo.V. j(a8lJeY and OhaiJ. Moore, for defendant. WAJ.ES,: J. This suit was brought to Compel the' defendanf td vey to the complainant certain real estate'iriStlssex count,}", Del., ",hich she had been induced to sell and eonvey to him, as she alleges; by fraud.. ulent misrepresentations on his part, and also because, at the time of her oonveyl1noe to him; she was mistaken 'about the quantity of her interest in the land; 'her interest being much· in excess of thilt: which she had intended to {lotivey, and of what she then knew or believed she was \ entitled further alleges that the price paid by the dp.fetidlmt was grossly inadequate, aIid greatly bel<>w the actual value bfthe interest purchased by hhn. The facts, as disclosed by the bill, answer, and proofs, are these: On the 26th of January, 1880, Isabella Bishop, the wife of the deferidant, died intest9;te,seised arid possessed of -four tracts of htnd, in .Bus.sex county, Del., containing in all 578 acres. The said, lsabella:died with-' brdt1')ers 01" sisout issue, never having had any childreti, and ters, fatber'or mother, her surviving, but left to surVive her her husband,' Bishop, the defendant, and the' following collateral heirs and James next of kin,' to-wit: On the maternal'side, three micles and. one aunt of the whole blobd,:as follows: William'B. Hamblin,' John B. Hamblin, Elijah M.Elamblin,Isabella Wbaley, wife of Seth ,and tbree uncles and one aunt of the half-blood, asfollO'Ws: Hamblin, Charles; S. Hamblin, Joshua T. Hamblin, and Hannah M.· Hamblil1,thecomplairiantherein; and,on the paternal side; all uncle· of the whole blood; Jonathan Carey,and' the issue ofa de(}ettsed aunt of the whole 'blood, Mary Ann Carey, 'W'Ji:I'O intermarried with Captain
REPORTER,
vol. 41.
John Hamblin, to-wit: Oharles S.Hamblin, Joseph H.' Hlltmblin, Joshua T. Hamblin, arid Hannah M. HaD:lblin, the complainant, being the same persons occupying the relation of uncles and aunt of the halfblood as aforesaid. These persons comprise all of the collateral heirs of Isabella Bishop living at the time of her decease, and who were her only at law, as appears from the annexed table of descent: John HaIllblln. (deceased,) married to .Tane Dale, (his first wlte.)
Wm. S. Hamblin. J . Jonathan<lareY.
I John S. Hamblln, .Elijah M. Hamblin. Isabella Hamblin, married to Seth Ai. Whaley.
Brothers and Sister.
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Mary Ann Ca.re;Y1 Jos. L.Care;y; marrIed to · John Hamblin, . . his second wite, .(IlOW deceased.,
to Hetty Ann Hamblin, (deceased.) . ' ." " .' · ISABELLA Carey. married to las. R. Bishog. the . dlsd
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John H. Hamblin: Cha<. S. Hamblin. Joshua F.Hamblln. ., . Hannah M. Hamblin. (the complaInant.)
Two days after ,he funeJ;'al of Mrs..Bishop, the complainant, together with her three whole brothers, and her 1lncle Jonathan Carey, and some of the other parties above named, met at the house of the defendant in Selbyville l about the dlstribution or allotment of the estate. 'fhis ,ended in 11.11 appointment to meet at Georgetown, and advice in, a settlement of the rights of all the parties, a1?od accorqingly the complainant, with two of her,whole brothers and Qer met at ,Georgetown early in February, probably. the see()ll.d of the' month, 1880. Some of the other hairs were present at qleemng, either in person or by their representatives. A lawyer was em,ployeq, and the of all the parties to Mrs. Bishop having fully and explained to him, it was then and there understood, and the parties present were so advised, that James R. Bishop entiqed to all the pex:sopal property of his deceased wife, absolutely, an,dtoone-half of herrealeState in Delaware for hill life; that the uncles anA aunts of the whole blood were entitleq to all the real estate in fee, totpe of James R. J}ishop in the:one-half; the· issue ofa. <,ieceasl!ld aunt of ,the whole blood taking of their mother by: right By this rule of l1pportlonment, the real esdivided six equal parts, corresponding to the number of up;c(es and aunts o( the whole blood, including a deceased aunt, onesi:Xtbwould belong to eA(}h uncle and aunt living at the time of Mrs. death, and. the remaining sixt1:l would be subdivided among the chpdren pf the deceased aunt of the whole blood; thus excluding the: co.lIaterl\1 of the pl\lf-blood from any !lhar,e itl,the estate. The comtherefore,,! infOl;med and believed that she would be :entitle,d, as Mrs. to one-fourth of part,-that is, part ,of the estate; and was oo:t·entitled·
HAMBLIN tJ. BISHOP.
to any share as an aunt of the half-blood. There had been some discussion among the heirs, at their first conference, about the value of the real estate, which was suggested by the proposition that the defendant should buy the whole, but no definite conclusion was then reached. After obtaining the opinion of counsel, and when the heirs had, as they believed, ascertained the extent of their respective shares, the negotiations for a sale to the defendant were renewed, and it was finally agreed that they would convey all their interest to him in fee for the consideration of $6,.000., In pursuance of this agreement, all of the heirs excepting Williamand John Hamblin conveyed their shares, being their entire interest in the estate, to the defendant, between May 7 and July 27, 1880, the complainant's deed bearing date on the day last named. The deeds from William and John were not executed until April 29 and May 16, 1881. 'Each of the uncles and the aunt of the whole blood received $1,000 in cash excepting William and John Hamblin, and each of the four children of the deceased aunt of the whole blood, including the comreceived $250. William and John HambliJ? had. bargained defendant to take, in lieu of cash, .lor their ,respecti,ve llhares, of land of equal value, in money· RECAPITULATION.
JonathanCarey was paid in cash" ' Elijah M. Hamblin" .... Isabella WhaleY .. II .. JQseph :II. Harr;blin" .. CharleI'S.lIamblin" .. Joshua T. Hamblin" .. HaI;lnah M. Hamblin" .. .. land, William S.Hamblin .. John S. Hamblin .. .. ..
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78 irlhls Ilthathe,thoughtit lrkelyh'e hadto]d complainant, prior't<): her conveyance to him, that Williarhand John Hamblin hal! sold tlieh-' ,shares to him; though he had nopatticular tecollection of doing so." ,,' . The proof of frau'd,therefore, depends on these two fa.cts: ; The evi'dence, after a carefUl e:ltarriination, furnisheS no 'Ar,e'these suffi,cient to produce the conviction that, the defendant intended to cheat and liefraud the complainltnt? Was heguiItyofactual or constructive fraud? Did he intentionally; or 'otherwise, mislead the corilplainant? These 'tWdpersonswere about the Same age. The defendant was 25 years,old on the 25th of April, 1880. They' had long acqllait:lted, and the 'riIosf relations existed between them. 'rheystood on equal in reference to the knowledge of theirrespecti .intetests in Mrs. possessed, equal means of knowingeacb' step that had taken or agreed on by her in the settlement of their rights. Sh'e had in Sussex county durihg the earlier portionofher' life, &ndhad' or more freqtientvisits to 'her relatives in that count, after she 'had gorieto reside in Philadelphia. 'She had been informed by a letter, received from her brother Charles under date of May 17, 1880, of what had been done ;up to that time, in these words: ..Hannah. we, Charles, Josh ua, Joseph, ;mlijah, lIave this day;,sold to James :Bishop 1\11 of our right.. title. claim, which we hold in Bell Bishop's estate in of Delaware, and received pay fur the same." , '1'here is no controversy over the truth of the defendant's statement i'n hi$lettefofJune 11, 1880, that alrtheheirs in.belawflrehad agreed t.o iaI,te $6,QOO"fortbeir i_nterest, mean,ing at the rate qf$I$,OOO for their respect!ve interests io fee-sUn pIe; .nor is it ,denied thatheqad paid all of t1:\eI1l, excepting the complainant and her and John, before she conveyed her share to him. There had been no written' 'articles 'Of agreement between the defendant and 'any oO'e of the heirs. beeJ;l.Jnade orally, and, stated to ,the The contJ,'8,cts for sale <lomplail\antthat all the oth'er heirs 'J:md sold to him, he was telling what bebeHe,vecI, to be the ttuth(l1ftd'hiS sts.tement was fully by the 'subseqi.lent conveyances John Hamblin." Incommon parlnilde',' when' ,a: has bought apieceOf' real estate he cannot 'be' 'hElIdg\1iItyof falsehood, if, at the time of making fiuch of sale and purchase has been hUlde;aJthotighrt,o ,of'the' property has., been JormalJyexeQuted. "There was 'no intentit:inill qr constructive'fraud on the part of the defendant in ma,king1thestatement he did in, reference to the shares ' of''\Yilliam and John Hamblill: and there is Dl? proof, i:n all the volui1litl0usand largely' irrelevant in this cause, that be intended 'fo" or that he did, deceive the complainant in order to obtain her deed; dn!the:oontrary,the attempt to'show that the compll1in'artt ;was the victim'of fraUdUlent, misrepresentations and unfair dealing Has, entirely failed: That the d,efendant desired to, buy her share and procure her deed, 'arter-he had bQught out the other heirs, was naturlli enough, arid he that purpose. Neither Will-
tl.
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,iam nor John lIamblin bas been to the :liefendant's , atatem,ent oftbeir sale whim,nor is it ,satisfacf;Qiily prov,OO thatthe complainant would hayedeclinedto make her deed :of July 27, 1880, if she had then known that her half-brothers, William and John, had · not yet formally executed their dee.ds to the defendant. She went to Sussex,col1nty in July, 1880, and,was visiting among her relatives and · connections for two weeks before the dllte of her deed, and bad every opportjlnity ofacting with knowledge and deliberation. Any contrivance to ,deceive or defraud her, under such circumon, the stauGes, wouldbave bel;ln futile. The charge of fraud, therefore, is not sustained. Anotber groUlildassigned for a reconveyance is tbegross inadequacy of the pricepsid by th6;defendant. The sale ofMl.;$. Bishop's estate D,ota forc;led one.: Negotiations for the sale had been periding from early Febru;ary)tQ the7tb of: May, 1880, and a;mplEl time had been afforded .to ,an of the marketyalue of the property·. T;wo ! that was adopted, and the other , by, the pourt for the assignment to each heiraf .. his respective portion, or, ifsuch division should be "fonndto be. im, praotiQable, then by an o,rder of public sale,the would represent the land, and be' divided among the heir$ according to law. TQ Sa\;e expense and delay, the first plan was considered and was carried into effect. All of the ,heira lived, in , neighbprhood Qf these landlil, aud were more with , the;m, thecomplaiillUlt baying resid(}(i for the greater pa,rt .of, her life in SBrme .vicinity· JQul'\thl:\.n Carey, if not all oCthe of Mra. · Bishop, was with: the vaille and productiveneasof £Iuch proPerty. '. TheY ,had . to estimate the of this whole estate, ,subject t9 thl:l . life;teusllcyof a very YQuPg .man ill the. one-half of it., Some parts of the land; were swampy and uncultivated, and would require no. smaJ.l "Qf ;money 9ff wood and ditching. The sellerswaD'te<i the a,nd,,the}myer the lowest pJ;ice. and the. sale, xnade. Gross. inadequacy of price, circumstaACtlJ&which presumption of frl:\.ud or imposition" will sometimes fm:nish gOQd reason for equitable relief; buteventhel.l the pJ1iee must be SO disproportioQedto the actual value o.£.the pr<>pertysold;,li'lil to .,s];lock the sense of justice. Nodisproporlion of.tbis. killd:existed here. The indefenliant's deed to Stevens as haViI;lg .b.een paid bythelattel':tQJohn Hamblin for the the Bul,'tou ,farIn,' falls short ()f t!;l.e.full proof required to aUGh an. inadequacy of price for which . equity will se;t aside a sale otlj,erwise made; and there is not theslighteiltevidence t11.!?-tany ,perspn was Willing and ready. ,to pay.more th/1n $6;000 iq.cash· farther to .the life-tenancy of the defendant. ..t he fact that i' ,Hamblin, on a resale of hi.s sbare, o1;>tainOO cQnsi,derable advance, that an inadequate pric(nv:as paid. tq:the: cO-mpwinant for ·. her.shal'e, or for the,collective . i; ::! ; , 1It.J!Jis.t$k.e
n:DERAL REPORTER,
, of· law bommlttedby-these parties, under all the circumstances surrounding the sale of Mrs. Bishop's estate, that a court of equity is bound to give reIief.from its consequences to this complainant/who is the only one,(jf the defendant's grantors who is now demanding a reconveyance. · The general rule, both at law and in equity, is that a conveyance, unaccompanied by fraud or imposition, will not beset aside for a mistake of law. ·Contracts and conveyances have been canceled or reformed to correct a mistake 'of fact, or in order to carry out the intention of the , parties,but where there has been a mutual and plain mistake of law, the interference of a court of equity has been rare and exceptional. Conflicting opinions of able judges may be found on the meaning and application ·of the maxim, igrtorantia juris non excusat, but the current of authorities in this 'country is ,in favor of' enforcing the rule as just stated. Some learned' jurists have assumed the position that the maxim was designed to apply to violations of ;the criminal law. only, and that; it should not prevent 'the rectification a mistake, when a person has ignorantly disposed of· his private right of property. Variousuice distinctions and refined reasoning have beert employed to relax the 'stringency of the rule, ., and counsel for' cOlllplainant .have 'referred to ,respectable authorities, both i'n: this country and 'in England, to sustain their theory that the case affords the example of a. mixed mistake of law and fact, for . which the relief now sought for has beengranted. In Freeman v. Curtis, '61 Me, 140, it was held that money paid or other propertyconveyed under LattJistake of law, with full knowledge of the facts, cannot be recovered back; but in that case the defendant' pad paid no consideration for the . property, and, being also guilty of deception, a reconveyance was ordered. It is true that in that case the plaintiffs were igndrantof the law relating · to' the descent and distribution of estates, and this ignorance of the law , involved thet11 in a mistake of fact as to who were the heirs of H. Curtis; · aild' the court said: "Where the mistake is one both of law and fact, 'though the latter is the result of the former, relief will be granted when .' justice and equity require it." The doctrine thus laid dOWn might be a.ccepted as sound, when; all the parties who had lost or gained by the -mistake could be restored to their original condition in relation to the ;']>1l0perty;affected;' but it may be considered more in the light of adict'l.llm 'tban ofan adjudication, since the case waS decided oli other and different · gl1\1>unds. The maxim igru>rantia et eet. is founded 011 the presumption ,.thlltevery person is acquainted with his own rights, provided he has l'hMareasonable opportunity to know'tbem, and oh a long experience :()fthe dangerous and embarrassing results that would follow if ignorance ,ottne law should berecoghized as asulficient cause for the annulment of .(jdntracts which have been executed by a complete performance. 1 Story, · Eq.Jur. §111; Bubie vfIAimley, 2"East, 469. What was the mistake JriMe' 'by the parties in this cause? The complainant was both a cousin · of the whole blood and an :aunt of the half-blood of Mrs. Bishop. It is ':-oohtitted that, at the time when the complainant executed her deed, she believed that she was entitled to a one-twenty-fourth part of the estate , only, as a cousin-german of the decedent,and that she intended to con-
of