Jackson ex dem. Haverly v. French

New York Supreme Court

Jackson ex dem. Haverly v. French

3 Wend. 337

CourtNew York Supreme Court

DecidedOctober 15, 1829

StatusPublished

Cited by22 cases

This text of 3 Wend. 337 (Jackson ex dem. Haverly v. French) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jackson ex dem. Haverly v. French, 3 Wend. 337 (N.Y. Super. Ct. 1829).

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Opinion

[339]*339 By the Court,

Savage, Ch. J.

The counsel himself canaot disclose a communication made to him by his client relative to a case in which the relation of client and counsel exists ; but that privilege is confined to counsel, to an interpreter, and perhaps to the clerks of an attorney or counsel, though as to the latter the cases differ. But if a party makes communications to counsel in presence of persons in no way connected with the counsel, such persons are bound to disclose what they may have heard.

The fact being shewn that the defendant held under Wemple, the question arises, could his possession be adverse as against the lessors ? I think not. The property belonged to Wemple’s wife, and having issue, it was his during his life; at his death it went to the heirs of his wife. Under such circumstances the possession is not adverse.

It is contended that the court are bound to presume a conveyance by deed from Visscher to Wemple and wife. Did nothing appear in the case as to Yisscher’s disposition of the lot subsequent to his promise to -convey, perhaps such presumption might legitimately be made; but it appearing that the promise was fulfilled by a devise of the property, the court cannot presume that the testator would have made such devise after he had given a deed to his daughter and her husband. The presumption, therefore, is the other way. The judge decided that Wemple was tenant at will, and so I think he was during the life of Visscher, who might have dispossessed him or French at pleasure. And the defendant was not entitled to notice to quit; 1. Because he had disclaimed any tenancy, by claiming to be the owner of the premises; and 2. Because in fact when the suit was commenced nothing like a tenancy existed. After the death of Visscher, Wemple or his grantee had an estate for the life of Wemple, and at his death the property vested in the heirs of Wemple’s wife, who died before her husband.

The plaintiff is entitled to judgment for one fourth part of the premises.

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[339]*339 By the Court,

Savage, Ch. J.

The counsel himself canaot disclose a communication made to him by his client relative to a case in which the relation of client and counsel exists ; but that privilege is confined to counsel, to an interpreter, and perhaps to the clerks of an attorney or counsel, though as to the latter the cases differ. But if a party makes communications to counsel in presence of persons in no way connected with the counsel, such persons are bound to disclose what they may have heard.

The fact being shewn that the defendant held under Wemple, the question arises, could his possession be adverse as against the lessors ? I think not. The property belonged to Wemple’s wife, and having issue, it was his during his life; at his death it went to the heirs of his wife. Under such circumstances the possession is not adverse.

It is contended that the court are bound to presume a conveyance by deed from Visscher to Wemple and wife. Did nothing appear in the case as to Yisscher’s disposition of the lot subsequent to his promise to -convey, perhaps such presumption might legitimately be made; but it appearing that the promise was fulfilled by a devise of the property, the court cannot presume that the testator would have made such devise after he had given a deed to his daughter and her husband. The presumption, therefore, is the other way. The judge decided that Wemple was tenant at will, and so I think he was during the life of Visscher, who might have dispossessed him or French at pleasure. And the defendant was not entitled to notice to quit; 1. Because he had disclaimed any tenancy, by claiming to be the owner of the premises; and 2. Because in fact when the suit was commenced nothing like a tenancy existed. After the death of Visscher, Wemple or his grantee had an estate for the life of Wemple, and at his death the property vested in the heirs of Wemple’s wife, who died before her husband.

The plaintiff is entitled to judgment for one fourth part of the premises.

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Bluebook (online)

3 Wend. 337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-ex-dem-haverly-v-french-nysupct-1829.

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