Opinion
Decided June 25, 1931.
In a bill in equity to remove a cloud from the title to real estate the evidence offered was sufficient to sustain the findings of the master that a conveyance was made to defraud the plaintiff as a creditor of the grantor. An admission of an attorney touching the action and the proceedings connected therewith is within the scope of his authority and is admissible against the client. A master to whom a suit in equity has been referred has no authority to grant a motion that the bill be dismissed for lack of evidence.
BILL IN EQUITY, to remove a cloud upon the title of the plaintiffs to certain real estate in Nashua. The same case is reported in 83 N.H. 588 under the name of Kittredge a. v. Bartis a. The matter was referred to a master who found the facts, and upon his report a decree was entered for the plaintiffs.
During the trial before the master, at the close of the plaintiffs' evidence and again at the close of all the evidence the defendants moved that the bill be dismissed. These motions were denied and the defendants excepted.
The master found, in accordance with the allegations of the bill, that a deed from the defendant Michael Bartis to the defendant John Kudzma "bearing the date of January 5, 1918 and recorded July 12, 1918 purporting to convey the land upon which the plaintiffs have levied is not a bona fide sale of the land made for a good and legal consideration between the parties and is a fraud upon the plaintiffs and was made while a suit was pending and on trial, and made for the purpose of defeating a levy thereon if Bartis should be charged in the suit . . . ."
To the foregoing findings the defendants excepted "because the findings are against the law and the evidence, and against the weight of the evidence, and because the Master fell into a plain mistake. . ."
The defendants also excepted to the admission of certain testimony as stated in the opinion.
A bill of exceptions was allowed by Young, J.
Other facts appear in the opinion.
Walter E. Kittredge and Frederick J. Gaffney, for the plaintiffs.
Lucier Lucier and Karl E. Dowd, for the defendants.
1. The master had no authority to make an order dismissing the plaintiffs' bill and hence his denial of the defendants' motions was technically correct, but these motions were apparently designed to raise the question of the sufficiency of the evidence to sustain a decree for the plaintiff, and it has been assumed by both parties that they were adequate for that purpose. The question has therefore been considered.
The deed here involved was dated January 5, 1918, but was not recorded until July 12, 1918, the day after the plaintiffs' first execution was filed in the registry of deeds.
There was testimony that after the bill was served upon him the defendant Bartis still referred to the property as his, and said that the deed to Kudzma was "no good." There was testimony of admissions made by counsel who represented the defendants in the early stages of this proceeding to the effect that they would not assert the validity of this deed as a defence to the bill. The testimony of the defendants upon the stand in regard to the alleged sale from Bartis to Kudzma might properly be regarded as incredible and was strongly suggestive of fraud. This evidence was clearly sufficient to sustain the master's findings of fraud and defendants' exceptions thereto must be overruled.
2. The defendants excepted to the admission of the testimony of the plaintiff Kittredge that an attorney, since deceased, who formerly represented the defendants in this proceeding, in the course of a preliminary hearing before the court, "admitted that the deed was what we claimed it was and was put on there to stop us from levying, if they could get in quick enough." The act of the attorney in making this admission was clearly one "touching the action and the proceedings connected therewith." (White v. Hildreth, 13 N.H. 104, 106), and hence within the scope of his authority. "The powers of an attorney, as an officer of the court, are very extensive. He may waive objections to evidence, make admissions in pleading or by parol, enter nonsuits and defaults, and may make any disposition of the suit and any admission of facts that the party himself could make." Bryant's Case, 24 N.H. 149, 153; Alton v. Gilmanton 2 N.H. 520; Page v. Brewsters, 54 N.H. 184; 2 Wig., Ev. s. 1063. This exception must therefore be overruled.
The defendants' remaining criticisms of the master's report raise no questions of law.
Exceptions overruled.
All concurred.