¶1The principal question in this case is, chiefly, as to the admissibility of Mr. Barry, as a witness against the defendants in error. When giving his testimony, he made no objection that he was their counsel, nor did he claim the privilege of his clients, but voluntarily stated all he knew of the transaction, as communicated to him by the defendants. He now claims the privilege of his clients, and contends he was their counsel when the disclosures were made. It does not appear that such a relation did, in fact, exist at the time Mr. Barry wrote the deed, or had the conversations. There is no retainer shown, or offer to retain, or fee paid. This, and this only, can consummate that relation. The weight of evidence is, clearly, that Mr. Barry was acting as scrivener, merely to draw a deed. He was not consulted as counsel, or asked for a legal opinion on a state of facts, but to draw a deed, the necessity for which was freely communicated by the defendant Jones.
¶2A case directly on this point, is found in 14 Pickering, 416, Hatton v. Robinson, in which it was held that, when an attorney at law was requested by a debtor to draw up a mortgage deed of his personal property, and the debtor disclosed his purposes in making such a conveyance, either without any particular motive, or in order to remove any scruple the attorney might have had, as to the character of the transaction, but no legal advice was asked or given, it was held that the testimony of the attorney, as to such communications, was admissible.
¶3There can be but one opinion about this deed, unless it shall be shown a bona fide indebtedness existed to Jones, and then it would be considered as a mortgage to secure Jones in the payment, of his debt, asserted to be due from Strader to him. If Jones was a bona fide creditor of Strader, then the deed ought to have the effect of a mortgage, though absolute on its face. If Jones was not such creditor, then the conveyance was fraudulent and void, as designed to hinder, delay and defraud creditors.
¶4The cause will be remanded to the Kane Circuit Court, with directions to refer it to the master in chancery, who will ascertain the amount actually and bona fide due Jones from Strader, at the time of the execution of the deed by Strader to Jones, and if any bona fide indebtedness shall be found to exist, and anything shall be found due, upon proper proof being made, then the deed will be decreed by the Circuit Court to be a mortgage, and it will stand as such for the amount proved. If nothing shall be found due at that date, then the deed will be adjudged fraudulent and void, as against bona fide creditors.
¶5Decree reversed.