
    John Rousseau, Adm’r, Resp’t, v. Jennie Bleau et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed February 12, 1892.)
    
    1. Executors and administrators—Deed executed but not delivered BT DECEDENT.
    Plaintiff’s intestate executed a deed March 6th, and it was recorded October 30, but was not delivered to the grantee until several days after the death of the grantor. Held, that it was not operative as a conveyance of real estate, and plaintiff, as administrator of the grantor, had no right to bring an action to set it aside, as it constituted no obstacle to the enforcement of debts in the usual and ordinary course of administration.
    2. Witness—Attorneys—Privileged communication.
    An attorney is a competent witness to prove the delivery of a deed to him for the purpose of delivery to another.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment for plaintiff.
    
      John T. Norton, for app’lts; H. D. Bailey, for resp’t
    
      
       Reversing 38 St. Rep., 221.
    
   O’Brien, J.

The plaintiff, as administrator of Mary Rousseau, who died on the 28th of October, 1888, brings this action in behalf of her creditors to set aside a deed of real estate made by the intestate in her life-time, in which the defendant Jennie Bleau is named as the grantee, on the ground that the instrument is fraudulent as against such creditors. The complaint alleged and the trial court has found that the deceased left no personal estate except a small sum of money and that at the time of her death she was indebted to one of her relatives for care and attendance during her last sickness in the sum of $200. The trial court found that the deed was executed by Mary Rousseau on the 6th day of March, 1888, and recorded on the 30th day of October,. 1888, but not delivered to the grantee named therein until two or three days after the death of the grantor. It was further found as matter of fact and law that the deed was fraudulent and that the plaintiff, as the representative of creditors, was entitled to judgment setting it aside and the general term has affirmed the judgment. Assuming that the plaintiff, under chapter 314 of the Laws of 1858, can maintain such an action as this, upon proper allegations and proof, yet we think that upon the facts found by the trial court the judgment should have been in favor of ttie • defendants. It having been found that the deed in question was not delivered till after the death of the grantor it did not so far as appears become operative as a conveyance during her life and it follows, therefore, that the plaintiff’s intestate died seized of the lands described therein. The rights of creditors against the real estate of deceased persons attaches to the land as a statutory lien immediately upon the death of the owner, and, of course, their rights cannot be impaired by any conveyance which is delivered or takes effect subsequently. Platt v. Platt, 105 N. Y., 488; 8 St. Rep., 77.

The creditors represented by the plaintiff, therefore, had a lien upon the land prior to the time that any title could vest in the defendant if any title vested in her at all. The deed constituted no obstacle whatever to the enforcement of their debts in the usual and ordinary course of administration. There was no need of invoking the aid of a court of equity to set aside the instrument as it could not, upon the finding, be/raudulentas to creditors. Whatever the consideration or purpose of the conveyance was, it may be good so far as appears against every one so long as the rights of the creditors are protected by the statute, and the administrator had no standing to attack it. He has precisely the same right now to proceed against the land that he would have had if the deed had never been executed. Nor can the judgment be upheld upon the ground that it removes a cloud upon title. The deed was not a cloud upon any right or interest that the creditors of the deceased had and the statute confers no power upon an administrator to bring an action for that purpose.* The theory of the defendants was that the grantor delivered the deed to the attorney who drew it with instructions to him to deliver it to the grantee. If this was the fact the legal effect of such delivery to a third person would be to divest the grantor of her title and transfer it to the grantee by relation as of the date of the delivery to such third person. Munoz v. Wilson, 111 N. Y., 295; 19 St. Rep., 372; Hathaway v. Payne, 34 N. Y., 92; Crain v. Wright, 36 Hun, 74.

On the trial the defendant, the grantee named in the deed, called the attorney who drew it at the request of the grantor and attempted in various forms to prove these facts by him and also that he acted as a mere scrivener in the preparation of the deed. The evidence was all objected to by the plaintiff upon the ground, among others, that it was a privileged communication under § 835 of the Code. The court excluded the evidence and the defendants > excepted. Before this section could have any application to the testimony offered it was necessary to show that the relations of attorney and client existed between the witness and the deceased. Renihan v. Dennin, 103 N.Y., 579; 4 St. Rep., 261. A part of the defendants’ offer was. to show that these relations did not exist at the time of the transactions sought to be proved. It was entirely competent to prove that. When the defendant sought, to prove by this witness the delivery of the deed to him by the ( grantor for the grantee it did not appear that there was any such professional relations between the witness and the deceased as to warrant the court in excluding the testimony. But even if the relation of attorney and client had been shown to. exist, the attorney was still a competent witness to prove the delivery of the deed to him for the purpose of delivering it to another. Such a communication from client to attorney is not within the prohibition of the section of the Code above cited and the attorney was always competent to prove it as, from its very nature, it was not made in professional confidence nor intended to be confidential, but, on the contrary, imparted to another. Hurlburt v. Hurlburt, 128 N. Y., 420; 40 St. Rep., 436.

It has never been held that a verbal message communicated from client to attorney to be delivered to a third person cannot be proved in behalf of the person to whom the message was sent by the testimony of the attorney. Moreover, the next section of the Code permits the client to waive the privilege when it exists and then the testimony is competent. When the deceased commissioned the witness to deliver the deed to the grantee named therein she necessarily waived all objections that she might otherwise make to proof of that fact by the attorney. Matter of Coleman, 111 N. Y. 220; 19 St. Rep., 501.

The finding of the court that the deed was not delivered till after the death of the grantor was, it is fair to assume, the result of excluding the testimony, and in this view its exclusion was probably more hurtful to the plaintiff, upon whose objection it was excluded, than to the defendant who offered it. However that may be, in the aspect which the appeal has assumed here the defendant had the right to give the evidence, and its exclusion was error. There are some other rulings appearing in the record that would be difficult to sustain, but as the judgment must be reversed for the reasons stated, it is not necessary to examine them.

The judgment should be reversed, and a new trial granted, costs to abide the event.

All concur, except Maynard, J., taking no part.  