plaintiffs in this suit for the sum of two thousand dollars. On May 30, 1895, Parker, having in the meantime discovered the error in his deed, brought 60 suit against the Stearns heirs (the original grantors having died) to compel a correction of the error in the deed from their ancestors to him, and obtained a decree to that effect in July, 1895. The complaint further alleges that all the money advanced by Parker to purchase the land in controversy from Stearns was repaid to him by the gas company prior to the sale or attempted sale under the Basche judgment, except the sum of one hundred and twenty-five dollars, which the plaintiffs and their predecessors in interest have duly tendered to him, and, by their complaint, offer to pay such amount, or any other sum for which it may be found Parker is entitled to hold the title of the land in controversy as security.

The motion to strike out the cross-bill is based upon two grounds: 1. That the answer in the law case, being a specific denial of every material allegation of the complaint, is, if true, a complete defense at law, and therefore resort cannot be had to equity; and 2. The facts as alleged in the cross-bill do not entitle the plaintiffs to any relief requiring the interposition of a court of equity, and material to their defense in an action at law. As we are all clearly of the opinion that the motion should be sustained upon the second ground, we shall pass, without deciding, the question of practice raised by the first.

The cross-bill is framed, and counsel's argument proceeds on the theory, that while absolute in form, the deed under which Parker claims was intended, and is, as between him and the gas company, a mortgage to secure the payment of money, and that the plaintiffs are the successors in interest of that corporation, 61 and, as such, are entitled to redeem. They claim this right by virtue of the execution sale on the Basche judgment, but, unless that sale operated to transfer the interest of the gas company in the property in controversy to the purchaser thereat, the plaintiffs have no such right. If Parker holds the title to the property as the mortgagee of the gas company, it probably has a right to redeem from him, but no other person can exercise that right unless as its successor in interest. Now, from the allegations of the bill it appears and is admitted that no attempt was ever made to sell or convey, by sheriff's deed, the property in controversy, or any interest therein; but an entirely different tract of land is described throughout the entire proceedings, and hence the alleged salė is absolutely void, and

conveys no title whatever if it be conceded that an equitable interest in real estate is subject to sale under execution. Nor can a court of equity correct mistakes of this kind in proceedings to enforce judgments at law. The rule of caveat emptor applies with all its rigor to such sales. In the absence of fraud, the buyer must look out for himself. He is presumed to purchase with his eyes open, and with full knowledge of the proceedings upon which the validity of his title must depend. The law requires the performance of certain conditions before the title of one person can be involuntarily transferred to another, and a court of equity has no more power than a court of law to dispense with any of them. This being so, it is manifest that the purchaser at the execution sale under the Basche judgment acquired no title whatever, either legal or equitable, to the property 62 in controversy; and, of course, the successor in interest of such purchaser could be in no better position. It follows, therefore, that plaintiffs do not show by their alleged cross-bill such a state of facts as entitles them to redeem from the Parker mortgage, and hence the court did not err in sustaining the motion to strike out the cross-bill.

It follows that the decree of the court below must be affirmed, and it is so ordered.

SHERIFF'S DEEDS-REFORMATION OF INSTRUMENTS.-In a sheriff's deed, the land sold must be described with reasonable certainty: Jackson v. Delancy, 13 Johns. 536; 7 Am. Dec. 403; and, failing to do so, the deed is void: Broughton v. Birchmore, Harp. 300; 18 Am. Dec. 654; though parol evidence may be admitted to identify the premises intended to be conveyed: Bates v. Bank of Missouri, 15 Mo. 309; 55 Am. Dec. 145. One who seeks to have a deed reformed on the ground that it includes land not intended to be conveyed must establish his case by clear, satisfactory, and convincing proof: Crookston Improvement Co. v. Marshall, 57 Minn. 333; 47 Am. St. Rep. 612, and note. The reformation of instruments is discussed in the monographic note to Williams v. Hamilton, ante, pp. 481-522. It is settled by the great weight of authority that an action to reform a sheriff's deed which has been improperly or defectively executed, cannot be maintained: Extended note to Bartlett v. Judd, 78 Am. Dec. 136, 137, on reforming sheriff's deeds.

MINARD V. STILLMAN.

[31 OREGON, 164.]

ATTORNEYS-PRIVILEGED COMMUNICATIONS.-Where an attorney represents all the parties in the settlement and adjustment of a controversy, he will not, in a dispute between them and a third person, be compelled to disclose any communication made to him by any of them while in the exercise of such professional em.

ployment; but in a dispute between his former clients themselves, he is not prohibited from making disclosure of anything communicated in the presence of all concerned or intended for the information of all.

ATTORNEYS-PRIVILEGED

COMMUNICATIONS.-Where a controversy arises between an attorney and one of his former clients, he cannot shield himself from testifying on the ground that to do so would be a breach of professional confidence. Hence, where an attorney representing a person having a claim against an insurance corporation admits receiving the amount thereof, and claims to have paid certain portions of the moneys so received by him to various parties, he cannot, in an action against him by his client to recover the moneys thus received, refuse to testify to whom such payments were made, on the ground that it is a matter of professional confidence between himself, his client, and such parties.

Action to recover of the defendant, an attorney at law, a balance claimed to be due from him by the plaintiff as the proceeds of money collected by him of an insurance company. The collection of the moneys by the defendant was admitted by him, but he claimed to have paid them out by the direction of the plaintiff. At the trial, the defendant, as a witness in his own behalf, testified to making payments to various persons of all the moneys received by him, but on cross-examination he refused to give the names of the persons to whom payment was made, claiming that it was a matter of confidence between such parties and the husband of the plaintiff, W. F. Minard, and himself. He admitted that he had not paid any part of the money either to the plaintiff or her husband, and they, in open court, both consented to his testifying fully to whom the payments were made. The defendant declined to testify upon this subject, saying: "I desire to state that I refuse to give that information, for the reason that this money was received and disposed of by me upon a matter of confidence. People that did not want to deal directly, and thought they could not deal safely with W. F. Minard, dealt with me, and the money was paid cut. I was acting in confidential relations with the other parties." The court refused to compel the defendant to answer, and allowed judgment to be entered in his favor, from which the plaintiff appealed.

L. Kearney, for the appellant.

John L. Balleray, for respondent.

168 PER CURIAM. The defendant contends that he oc cupies the position of attorney both for the plaintiff 167 and the parties to whom he paid this balance; that the payments to such parties are in their nature privileged communications be

tween attorney and client, and that he ought not to be compelled to make the disclosure. If it be conceded that this is a case wherein an attorney may properly represent all parties concerned in the settlement and adjustment, the rule seems to be well settled that in a controversy between such parties and a third person the attorney will not be compelled, without the consent of the parties, to disclose any communication made to him by them while in the exercise of such professional employment: Root v. Wright, 84 N. Y. 72; 38 Am. Rep. 495; Gruber v. Baker, 20 Nev. 453. Upon the other hand, the rule is as well settled that in a dispute between parties themselves the attorney is not inhibited from making such disclosures where the communication was made in the presence and hearing of all concerned, or was intended for the mutual information of all: Micheal v. Foil, 100 N. C. 178; 6 Am. St. Rep. 577; Britton v. Lorenz, 45 N. Y. 51; Rice v. Rice, 14 B. Mon. 417; Carey v. Carey, 108 N. C. 267; Hughes v. Boone, 102 N. C. 137; Gulick v. Gulick, 39 N. J. Eq. 516; Goodwin Gas Stove Co.'s Appeal, 117 Pa. St. 514; 2 Am. St. Rep. 696; House v. House, 61 Mich. 69; 1 Am. St. Rep. 570; In re Bauer's Estate, 79 Cal. 304; Hanlon v. Doherty, 109 Ind. 37. The reason o the latter rule is stated 168 in Rice v. Rice, 14 B. Mon. 417, which is, in effect, that as the parties are all present at the same time, or are entitled alike to the same knowledge, the matter communicated is not in its nature private, and consequently hat, as between the parties, and in so far as they are or can be concerned, it cannot, in any sense, be deemed a subject of confidential communication made by one which the duty of the attorney inhibits him from disclosing to the other. And in conclusion Simpson, J., says: "The statements of parties made in the presence of each other may be proved by their attorneys, as well as by other persons, because such statements are not in their nature confidential, and cannot be regarded as privileged communications."

Now, the case at bar presents a condition of affairs in which there is a dispute between one of the parties and the attorney, and it is contended by the defendant's counsel that the attor ney stands in the position of a stranger, and that the rule should be applied as where the controversy is between one of the parties to the communication and a stranger. In this view we cannot concur. If it was a matter of common knowledge between the parties to the settlement as pertains to the persons to whom this balance was paid, the knowledge or the communications

AM. ST. REP., VOL. LXV.-52

by which it was obtained by all cannot be considered as privileged in so far as the parties are concerned, and the attorney is not inhibited by any duty devolving upon him from communicating such knowledge from one to the other. The knowledge would be matter common to all, the attorney included, and for that reason is not privileged, as it concerns them all. So that in a controversy between 169 one of the parties and the attorney the communication would be a matter of common knowledge between parties to that controversy, and the reason assigned why it is not privileged as between the parties to the settlement is equally as strong, and has like application as between one of the parties and the attorney. The court was therefore in error in not requiring the defendant to answer. The information which the plaintiff sought to elicit would seem to be pertinent to the issue, which was whether defendant had converted any of this money to his own use. He claims that he paid it to certain parties under the direction of the plaintiff, and it is, therefore, an important factor in the logical course of an examination touching the transaction to ascertain and know to whom it was paid, and was, therefore, proper subject matter respecting which to pursue a cross-examination of the witness. The judgment of the court below will therefore be reversed, and the cause remanded for such other proceedings a may seem pertinent, not inconsistent with this opinion.

ATTORNEY AND CLIENT-PRIVILEGED COMMUNICATIONS -WHAT ARE NOT.-If an attorney acts for several clients, he cannot testify without the consent of all, and this is true as between his clients, or any of them and third parties; but where the controversy is between the parties themselves, the rule does not obtain: Michael v. Foil, 100 N. C. 178; 6 Am. St. Rep. 577; Seip's Estate, 163 Pa. St. 423; 43 Am. St. Rep. 803; Hurlburt v. Hurlburt, 128 N. Y. 420; 26 Am. St. Rep. 482. The attorney may disclose the communications when he has an interest in the matter, or the disclosure is necessary to protect his own personal rights. And he must disclose them where he is not only an attorney but a party, as where summoned as garnishee, he is asked if he has not received money from his client to pay certain debts: Extended note to Bacon v. Frisbie, 36 Am. Rep. 633.

THOMPSON V. Connell.

[31 OREGON, 281.]

JUDGMENT-FRAUD AS A GROUND FOR A MOTION TO VACATE.-Where the statute authorizes a court to grant relief from a judgment suffered by a party through his mistake, inadvertence, surprise, or excusable neglect, he is entitled to relief, if, by any fraud of his adversary, he was prevented from appearing and answering in due time.