12 STEW. MARCH TERM, 1885. Gray v. Gray. 513 equity, in a suit by the widow, for the moneys thus received and held. On the argument of this appeal, the statute of limitations was relied on as a bar to this claim, How far the statute referred to is applicable, is obviously a debatable question. That a stale claim of this character would be open to the gravest suspicion, and would often be rejected in a court of conscience on its own peculiar methods of dispensing justice, is evident at a glance; but the statute of limitations is applicable by its terms only to actions at law, and is useful only by analogy in relation to equitable titles and estates. Inasmuch as the wife, during coverture, by force of our statutes and the general regulations of our legal system, cannot sue nor be sued by her husband at law, the act in question can, under no circumstances, be applicable by its terms to debts due to her from him, and the consequence is such debts, in their relation to the passage of time, must be regulated altogether on an equitable basis. But it is not necessary at the present time to do more than to advert to this subject, as, in the present case, it appears that, by allowing the time that the running of the statute is suspended by the death of the debtor, six years had not intervened between the arrival of this right of action and the filing of this bill. This question, therefore, is not in the case. Let the decree be affirmed. Decree unanimously affirmed. Muns (Iowa), 14 Cent. L. J. 457; Simmerson v. Tennery, 37 Ohio St. 390; Where a husband and wife were tenants by the entirety in lands conveyed to them, the statute was held not to run against the wife during coverture, Harrer v. Wallner, 80 IU. 197. Where a husband and wife are residing together on land, there can be no adverse possession by one against the other, Vincent v. Murray, 2 Pugs. (N. Β.) 375; Sandford v. Finkle (Ill.), 20 Cent. L. J. 236. See Frost v. Frost, 21 So. Car. 501; Westcott v. Miller, 42 Wis: 454. The statute does not apply to a suit for a divorce, Mosely v. Mosely, 67 Ga. 92, 13 Rep. 682.-REP. 33 ! : Cubberly v. Cubberly. SAMUEL D. CUBBERLY, appellant, υ. JAMES D. CUBBERLY, respondent. When stipulations are kept out of a contract by fraud, such contract will be reformed in equity, and specifically performed. On appeal from a decree of the chancellor, whose opinion is reported in Cubberly v. Cubberly, 6 Stew. Eq. 82. Messrs. Robbins & Hartshorne, for appellant. Messrs. E. L. Campbell and B. Gummere, for respondent. The opinion of the court was delivered by BEASLEY, C. J. This decree is affirmed on the ground that the stipulation upon which the equity of the respondents depends, was kept out of the written agreement by the covinous contrivance of the appellant; that such stipulation should therefore be incorporated into the contract, and that such contract thus reformed should be specifically performed. PATERSON, J. (dissenting.) A parol trust here is sought to be engrafted on a written agreement. In such a matter the proof should be very full, clear and beyond suspicion. Not only does that fail to come up to the level of these standards, but, in my opinion, the improbabilities against the alleged fact are strong. For this reason I cannot assent to the conclusions of the court. One of the principal beneficiaries by the compromise testifies that the appellant did not say to her he would give the poor brothers and sisters anything, and does not think she signed any paper expressing that condition. The last agreements of the 15th, 16th and 17th of August, 1877, executed by both beneficiaries while the settle Cubberly v. Cubberly. ment was in progress, and alluded to therein, are not set up in the bill, and so not attacked as fraudulent, though one-half of each share is given by those to the appellant. This suppression is significant. Again, the most pronounced witnesses for the complainants testify that they were induced to agree to give the appellant a moiety of what they would obtain under the settlement, as next of kin, in order that the poor brothers and sisters. might derive more benefit than from what they would take as heirs to the real estate. Then why, when the compromise was ratified, did they try to persuade the defendant to accept $2,000 as his share, and failing in that effort, force him, as it were, to pay $3,000 to the lawyer of one, and $4,000 to the son-in-law of the other, after the manner of star route perquisites? What was this, in reality, but robbing a trust they insist was sacred, and created and set apart for the needy relatives, and how can that fact be reconciled, or be consistent with the theory of the bill? Moreover, the complainants insist, for what is proved, if anything about it is, that the defendant agreed to do all the work, pay all the expenses, assume all the responsibilities, and bear all the annoyances attending the litigation of a claim of the nature and magnitude of the one in question, and, if successful, ⚫ divide the profits, per capita, with those who had refused, absolutely, to lend any assistance, or so much even as to lift a finger in behalf of their own interest. The court below decrees, and the decision is sustained here, that the working bee in this hive shall pay more money; principal and interest, to the lazy drones than all he realized as the result of his labors. In other words, he has to pay for the music to which the poor relatives are dancers. I cannot bring myself to assent to the justice or equity of the decision, and am of opinion that it should be reversed throughout. For affirmance - THE CHIEF-JUSTICE, DEPUE, DIXON, KNAPP, MAGIE, PARKER, REED, SCUDDER, VAN SYCKEL, BROWN, CLEMENT, WHITAKER-12. For reversal - PATERSON-1. 39 516 61 36 Gulick v. Gulick. WILLIAM GULICK, appellant. and MARY F. GULICK, respondent. When two persons employ an attorney in the same business, communications made by them in pursuance of such common retainer are not privileged inter sese. On appeal from a decree of the chancellor, whose opinion is reported in Gulick v. Gulick, 11 Stew. Eq. 402. Mr. G. O. Vanderbilt and Mr. J. H. Stewart, for appellant. Mr. J. F. Hageman, for respondent. The opinion of the court was delivered by BEASLEY, C. J. In the trial of a case on reference before Vice-Chancellor Bird, an attorney-at-law was offered as a witness in behalf of the respondent, to prove certain statements which had been made to him by the appellant. A motion was made at the hearing to exclude such testimony on the ground that the statements in question were made as part of a privileged communication from a client to his counsel. This contention prevailed, but, on an appeal to him, the chancellor took a different view, holding the testimony admissible for the reason that, in the transaction to which the statement which was offered to be proved related, the attorney in that business was acting professionally for both appellant and respondent, and that, as a consequence, what either of such parties stated was not private nor privileged inter sese. The evidence fully sustains the conclusion that this was the attitude of the attorney towards these litigants in the matter referred to, and, such being the situation, the law reasonably declares that the attorney being the adviser of both parties cannot be regarded as the depositary of confidential communications from the one side or the other. I have never supposed that the rule of law Chetwood v. Berrian. on this subject was in any degree uncertain; it is to be found in any of the text-books. Thus, Mr. Wharton says, vol. 1 § 587: "It is easy to conceive of cases in which two or more persons address a lawyer as their common agent. So far as concerns a stranger, their communication to the lawyer would be privileged. It is otherwise, however, as to themselves; as they stand on the same footing as to the lawyer, either could compel him to testify against the other as to their negotiations." The only difficulty in the case was to establish the status of the attorney as the common counsel of these parties; the case is not very conclusive with respect to all the communications in question, and this was probably the point of difficulty before the vicechancellor; but that question being settled, the pertinent rule of law is not in doubt. Let the order appealed from be affirmed. It is proper to add that it is not to be inferred, from the foregoing decision, that the question whether an order of the character of the one brought up for review in this case is appealable, has been considered by this court. The point was not raised, and is not adjudged. Decree unanimously affirmed. GEORGE R. CHETWOOD, appellant, υ. THOMAS B. C. BERRIAN, respondent. On appeal from a decree advised by Vice-Chancellor Van Fleet, whose opinion is reported in Chetwood v. Berrian, 12 Stew. Eq. 203. Mr. B. Williamson, for appellant. Mr. John R. Emery, for respondent. |