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rate property of Mrs. Powel prior to the fourth day of October, 1892. On that day she and her husband made a verbal agreement for the sale of the property to their next door neighbor, Cockroft Thomas. For some reason which does not appear, her husband went on the following day to B. F. Teller & Bro. and authorized them to make sale of the house and lot for eighteen thousand dollars. They found a purchaser, notified Mrs. Powel, and she signed a memorandum, approving the sale negotiated by them, which is dated on the 6th of October, 1892. On the 18th of the same month she and her husband completed the sale to Thomas by executing and delivering their deed, acknowledged in due form, to his daughter, Susannah M. Heraty, for whose use he desired the property, and to whom he seems to have presented it as gift. Maguire having refused to surrender or sell his interest under the bargain made by him with B. F. Teller & Bro., now seeks a decree for the specific execution by Mrs. Powel and her husband of the agreement made on their behalf by Teller & Bro., and that Susannah M. Heraty be adjudged a trustee of the title for his use and directed to convey it to him. The 387 Powels, with the same indifference to the rights of others manifested in the negotiations preliminary to the sale, have taken no defense, and a decree pro confesso has been entered against them; but Mrs. Heraty denies that she is a trustee of the title for the plaintiff, and insists that she is entitled to hold it for herself.

Upon this question two facts are conclusive: 1. The contract made by her father and in execution of which the deed was delivered to Mrs. Heraty, was the first in point of time. It was made the fourth day of October. The contract, so far as it was authorized or ratified by her, between Teller and the plaintiff, was on the 6th. It is a maxim of equity that first in time is first in right. Thomas had a right as between himself and his vendors, to insist on his agreement as good against any and all persons acquiring rights subsequently to his own; and Maguire was such a person. It is true that Mrs. Powel was not legally bound by her contract with Thomas, but on the other band she was under no obligation, legal or moral, to repudiate it. If she chose to recog . nize and execute it she had a right to do so, and a court of equity will not deny to her this right. 2. Thomas, the purchaser, who paid the price of this property to Mrs.




Powel, and under whose direction the deed was made to Mrs. Heraty, is the party to the contract which we are asked to hold void, and he is a necessary party to this bill for that reason. Mrs. Heraty did not buy from Mrs. Powel. She is a donee of her father who did buy, and who paid the price; and if that contract of purchase and the deed made in pursuance of it are to be adjudged fraudulent and void as against the plaintiff, then beyond all question the actual purchaser should be a party.

The plaintiff insists that he shows the first and only written contract of sale, and that this contract is complete in every essential particular. This is true; but it was the privilege of Mrs. Powel to reply by the fact that she had made an earlier contract of sale which, though not in writing, she felt bound to perform, and that she had accordingly done so. The rule in equity is that any circumstance that shows that a decree of specific execution, even of a written agreement of sale, would be unfair or inequitable is sufficient to defeat the application: Brightly's Equitable Jurisdiction, 220. Mrs. Powel did not choose to state 388 the facts, but they have been made to appear by the other defendants, and have been distinctly found by the master. Even if the evidence upon this subject was conflicting the finding by the master would, when approved by the court below, be regarded as settling the question: Kutz's Appeal, 100 Pa. St. 75. But the evidence is not conflicting. There is no denial of the fact that the verbal contract with Thomas was made on the 4th of October. Whether Mrs. Powel was necessarily bound by her contract with the plaintiff it is not important now to inquire. She seems to have assumed her liability, and suffered a decree to be entered pro confesso against her.

As she has made the specific execution of the agreement impossible by the performance of a prior contract of sale, and the acknowledgment and delivering of a deed in pursuance thereof, her liability upon the second contract is for damages only, and these can be adjusted by the court below under the judgment pro confesso.

As to Susannah M. Heraty and M. P. Heraty, her busband, the decree is affirmed and the bill dismissed, appellant to pay the costs of this appeal. The record is remitted for proceedings under the decree pro confesso to ascertain the dam. ages to which the plaintiff is entitled.

SPECIFIC PERFORMANCE — DEFEYSES. - Where there are circumstances which will render the operation of a decree of specific performance harsh and inequitable the parties will be left to their remedy at law: Datz v. Phillips, 137 Pa. St. 203; 21 Am. St. Rep. 864, and note; Brown v. Pitcairn, 148 Pa. St. 387; 33 Am. St. Rep. 834, and note. To the same effect sea Friend v. Lamb, 152 Pa. St. 529; 34 Am. St. Rep. 672, and note.

SPECIFIC PERFORMANCE-DAMAGES. -A court of equity may, in cases where the party is aot entitled to specific performance, grant relief by decreeing the repayment of the money expended on the faith of the contract: Green v. Drummond, 31 Md. 71; 1 Am. Rep. 14. Equity has jurisdiction to grant compensation in all cases of bills for specific performance, though denying the relief sought by the bill: Rider v. Gray, 10 Md. 282; 69 Am. Deo. 135, and note.

Seip's Estate.


by several persons who employ the same attorney in the same business, made by them to such attorney in relation to such business, while priv. ileged as to their common adversary, are not privileged as between

themselves. ATTORNEY AND Client-PRIVILEGED COMMUNICATIONS.-An attorney em.

ployed by the husband of one of three sisters equally interested in the subject matter of litigation is competent to testify in a subsequent contest between the sisters, involving the same matter, as to who were the partners he represented, and as to the declarations of the husband made during his lifetime, showing for whom he acted in employing the

attorney and managing the litigation. WILLS--ContesT-COMPROMISE.—No contestant of a will can compromiso

any thing beyond his personal interest in the contest, and is entitled to no more than his distributive share in a sum received by way of general

compromise. Wills—CONTEST—COMPROMISE-INTEREST.-One of three parties equally

interested in the contest of a will, but made a party defeudant, is pre. sumed, in case of a compromise, to be entitled to an equal share with the other parties, and the burden of proof is on them to show a releaso of interest sufficient to rebut such presumption. M. C. L. Kline and J. Rupp, for the appellant. J. S. Biery, T. B. Metzger, and R. J. Butz, for the appellee.

430 WILLIAMS, J. The facts to be considered in the determination of this appeal appear in the auditor's report, which was concurred in and confirmed by the orphans' court.

From this report we learn that George Probst died testate in February, 1885, leaving a large estate. He left three half sisters to survive him, Christiana Knauss, Catharine Seip, and Lydia Probst. By his will he gave his estate to certain

of his collateral relatives, excluding his half sisters and other relatives from any share whatever therein.

Those who had been excluded, or some of them, determined to contest the validity of the will; and for these Nathan Seip, the husband of Catharine, appears to have acted as agent. He consulted with and retained counsel, and took general charge of the preparation and conduct of the proceedings. An issue devisavit vel non was framed in which Mrs. Knauss and Mrs. Seip were named as plaintiffs, and in which Lydia Probst was named as one of the defendants. This was upon the list for trial, and in a position to be reached in a few days, when it was settled upon the pay. ment of ten thousand dollars to the attorneys for the con. testants.

The question now raised is, To whom did the money paid by the proponent belong? Lydia Probst alleges that she was entitled to share with her sisters in it, and they now claim the whole. This controversy was referred to an audi. tor, who sustained the contention of the accountant, that Lydia Probst was not entitled to share in the money obtained by the settlement.

It should be remembered that the three sisters stood in the same position. They had certain rights under the intestate laws that the will denied. If the estate of George Probst was to be distributed under his will they were all alike excluded. If the will was set aside they would be admitted on exactly the same terms regardless of their apparent position on the record as parties to the issue, and of their contribution to the expenses of the contest. But the auditor and the court below held that the right of Lydia Probst to a share with her sisters depended 431 on the answers to two questions: 1. Was she "an active contestant on record with Mrs. Seip and Mrs. Knauss? 2. Did she contribute toward the expenses in carrying on the contest with the understanding that she should share in the proceeds realized"? The evidence relied upon to show that she was a contestant, and had promised to contribute to the expenses, consisted of the testimony of John Rupp, Esq., one of the counsel for the contestants, and the declarations of Nathan Seip, now deceased, made while the contest was being carried on and while it was in process of settlement. The testimony of Mr. Rupp was excluded because of his confidential relations to Mrs. Seip and Mrs. Knauss. The declarations of Nathan Seip were excluded because he


was the husband of the decedent whose estate is now for distribution. The whole of the evidence relating to the ques. tions stated by the auditor being thus taken out of the case, the questions were decided against Lydia Probst, and the two sisters were allowed to retain the share of the third in the money realized from the settlement of the issue devisavit vel

Was John Rupp properly excluded on the ground of privilege? He is an attorney at law, and was employed as counsel for the contestants. If the issue had been on trial and the proponent had undertaken to examine him about what Blackstone calls “the secrets of the cause," which had been communicated to him by his clients, it is clear that the clients could have objected, and relied on the fact that communications made by them to their counsel, relating to the cause, were privileged. But this was not a controversy between the contestants and their adversaries.

It was a controversy among themselves. Here were three sisters standing in the same relation to the testator, and having the same interest in defeating his will. Two of them appeared as plaintiffs, and the other as one of the defendants, in the issue. Neither of them appears to have consulted counsel personally, but Nathan Seip, the husband of one of them, did all that was done on behalf of the contestants. Whom did be represent? For whom did Mr. Rupp appear? This is the present question. It is a search, not after some communication by client to counsel, but after a fact that could be inquired into on the trial of the issue, if such trial had been reached. It could have been settled in advance by a rule on counsel to file a warrant of attorney, 432 and this at the instance of the adverse party. It is the fact of employ. ment that creates the confidential relation. Until this relation exists there can be no privileged communication. The mere fact of employment is not privileged, but, from the nature of the relation between client and counsel, it is open to inquiry in any court in which the counsel appears as such. So, for a very obvious reason, the fact of a settlement between litigants and the terms upon which it was made are open to inquiry. An attorney who assisted in adjusting the terms of such settlement is a competent witness to show what the terms were: Schubkagel v. Dierstein, 131 Pa. St. 46. If an attorney represents two or more persons he may be called as a witness in a controversy between them, and statements made to him by one of them in the presence of the others will

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