right of passage on Mr. Broom, then there is no conflict between the Broom and the Howell grants. Moreover, if that construction is given to the grant, then no reservation in Howell's deed was necessary, for the simple reason that so long as Mr. Broom permitted Mr. Howell to pass through the 12foot alley or passageway his right to pass over the 15-foot strip was clearly implied. It may also be said to have existed as a matter of necessity, since the right to pass through the 12-foot alley was useless unless the right to pass over the 15-foot strip existed in connection therewith. In other words, the right to pass over the 15-foot strip was, in legal effect, appurtenant to the right to pass through the 12-foot passageway; but the right to pass over the 15-foot strip continued only so long as the right to pass through or over the 12-foot alleyway continued, and no longer. This view again lends color to the construction we have placed upon the grant in question. "The grantee herein is allowed the privilege of entering or passing through said alley at any time, night or day, and to be provided with a key" to unlock the gates, etc. Is it not manifest that in using the foregoing language the option by the grantor to cease using the alleyway as a passageway, and thus to terminate the right of passage on the part of the grantee, although not expressed in apt terms, is nevertheless clearly implied? Is it not equally clear that it was not intended to grant to Mr. Howell any interest in the land or alley as such? Nor can it be contended that the right of passage was granted as an appurtenance to anything. What was, in fact, granted was a mere right of passage through the alleyway for such length of time as the alleyway should be used as a passageway. By whom used? By the grantor, or by his consent. We think this case comes squarely within the decision in Batchelder v. Bank, 66 N. H. 386, 22 Atl. 592. In that case the right to use the passageway was granted in these words: "So long as the same shall be used by said gran [4] Counsel for appellant, however, further contend that the habendum clause in Mr. Broom's deed should likewise be given prop-tor as a passageway." The three italicized er effect. Of course, all parts of a deed, including the habendum clause, must be given proper effect, and especially where there is any ambiguity or uncertainty in the granting clause of the deed. The habendum may, however, not be resorted to for the purpose of creating a conflict, nor to restrict or enlarge the grant. The rule in that regard is, we think, well stated by the Appellate Court of Indiana in the case of Lamb v. Medsker, supra, where it is stated in the headnote in the following words: "While every part of a deed should be examined and construed as a whole, and the habendum may be used to explain the intention of a granting clause expressed in general terms, yet the habendum cannot be used to contradict the granting clause or cut down the estate granted thereby, but, if it conflicts therewith, must give way before it." [5] There is, however, still another reason in this case why the habendum cannot be permitted to affect the grant. It must be remembered that there was an additional and substantial thing granted in the deed, namely, the 6 inches by 80 feet strip, to which the habendum clause could and did apply with full force. There is nothing, therefore, in the habendum clause from which it could be legitimately inferred that it was intended to affect the grant respecting the right of passage in any way whatever. The terms and conditions imposed on the right of passage are all expressed in the granting clause, and need no aid from, nor can they be aided by, anything that is said in the habendum. [6] To avoid all misconception of what prompts us to arrive at the conclusions reached in this case, we desire to add that it certainly is apparent that the grantor intended to impose both restrictions and conditions on the right to use the passageway. The lan words are included in the grant in that case, while they are excluded therefrom in the case at bar. The grant in the case at bar is, however, restricted and conditioned in other respects as appears from the grant inself, which was not the case in Batchelder v. Bank, supra. From all that appears in the grant in the case at bar the option to cease the use of the passageway, and thus to terminate the grantee's right to its use, although not expressed by the insertion of the words "by the grantor," is nevertheless clearly implied by all that is said in the grant. What is clearly implied, therefore, was not required to be expressed. In the New Hampshire case the court held that in the grant the grantor (the bank) had the right to cease the use of the passageway at any time, and that when it ceased to use it the right to its use was terminated on the part of the grantee. In principle that case is not distinguishable from the case at bar. See, also, Jones on Easements, § 370, where the author lays down the rule that, where the duration of a right of way or right of passage is defined or limited, the right may not be enlarged by implication. We think that where, as in the case at bar, the parties have all clearly manifested an intention to limit the duration of the right of passage, it is the duty of the courts to enforce that limitation, and not to disregard it by giving a perpetual right where only a determinable one was intended. If, therefore, we consider the language in the deed when applied to the subject-matter of the grant and in the light of what we have already stated, there seems but one conclusion permissible, and that is that the right of passage through the passageway or alley by the grantee and his successors continued "so long as the same shall [7] It is, however, further contended that some time prior to the making of the deeds we have referred to the grantor and grantee therein had entered into a written agreement wherein the things granted in the deeds constituted the subject-matter of such agreement, that the right of way or passage was specially mentioned in that agreement, and that no limitation was placed upon such right. That agreement, it was contended, had been lost or destroyed in some way before the trial. Appellant's counsel undertook to bring the agreement in question before the court as evidence for two purposes: (1) To show that it was agreed between the parties that the right of passage was intended to be unlimited, that is, perpetual; and (2) for the purpose of aiding the court in arriving at the correct meaning of the granting clause in the deed, from Broom to Howell. The written agreement was clearly not admissible as evidence for the purpose first mentioned. It has become elementary that, in the absence of fraud, all the conditions and provisions contained in an antecedent executory contract or agreement are merged in the deed which is executed and delivered in fulfillment of the stipulations contained in said agreement. In the case of Slocum v. Bracy, 55 Minn. 22, 56 N. W. 826, 43 Am. St. Rep. 499, Mr. Justice Mitchell states the rule clearly by that was meant so long as the grantor | through the passageway mentioned in the shall use it or permit its use, and not so long deed: It is quite true that, where there is as the grantee shall use it, nor yet that it an ambiguity in the language or uncertainty shall continue until terminated by the joint respecting the intention of the parties to a act of both. writing in question, the courts, within certain limits, should be, and generally are, liberal in availing themselves of all legitimate evidence, both intrinsic and extrinsic, so far as such evidence is admissible under the rules of evidence, to ascertain the sense in which certain language was used by the parties and to arrive at their intent. See 1 Elliott on Evidence, §§ 576 and 605; 2 Elliott on Contracts, §§ 1508 and 1655; Mason v. Ryus, 26 Kan. 464; Burt v. Stringfellow, 45 Utah, 207, 143 Pac. 234. The rule is, however, inflexible that extrinsic evidence consisting of prior negotiations, etc., when proper for the purpose of aiding the court to arrive at the intention of the parties, may not be admitted or used for the purpose of varying or contradicting the terms of a writing, but is strictly limited for the purpose of aiding the court in ascertaining the correct meaning of the language used by the parties and to determine their intention, from the language when its correct meaning is ascertained. In view that the contract in question was lost or destroyed counsel were unable to offer it in evidence, but they did offer to prove the contents thereof, and thus bring the stipulations contained therein before the court. They thus made an offer to prove the contents of the contract respectgrantee, Howell. They offered to prove in ing the right to use the passageway by the that regard that "nothing was said as to the limit of time in that contract." That is, all that was said in that regard was that Mr. Howell should be granted a right of passage through the passage or alleyway. Conceding that counsel had proved just what they stated they could prove in that regard, still we cannot see how that fact, standing alone, could aid the court in determining either the meaning of the language used or the intention of the parties. Suppose the conditions had been reversed and the language in the agreement had been as it is in the deed from To the same effect are the following well- Broom to Howell, and the language in the considered cases: Clifton v. Jackson Iron | deed as it is alleged it was in the agreement; Co., 74 Mich. 183, 41 N. W. 891, 16 Am. St. would counsel concede that for that reason Rep. 621; Davenport v. Whisler, 46 Iowa, the grant in the deed would not control? Fur291; Hampe v. Higgins, 74 Kan. 295, 85 Pac.ther, would they concede that what was con1019; Carter v. Beck, 40 Ala. 599; Williams v. Hathaway, 19 Pick. (Mass.) 387. To the same effect is Savings & T. Co. v. Stoutt, 36 Utah, 211, 102 Pac. 865. The case of Clifton v. Jackson Iron Co., supra, affords a strong example of the rule and its enforcement. thus: "No rule of law is better settled than that. where a deed has been executed and accepted as performance of an executory contract to convey real estate, the contract is functus officio, and the rights of the parties rest thereafter solely on the deed. This is so although the deed thus accepted varies from that stipulated for in the contract, as where the vendee accepts the deed of a third party in lieu of the deed of his vendor; and as, in the sales of land, the law remits the party to his covenants in his deed, if there be no ingredient of fraud or mistake in the case, and the party has not taken the precaution to secure himself by covenants, he has no remedy for his money, even on failure of title." [8] Now, as to the second proposition, namely, that the court erred in refusing to permit the appellant to prove the contents of the lost or destroyed writing for the purpose of aiding the court in arriving at the real intention of the parties to the writing with respect to the granting of the right to pass 158 P.-44 tained in the agreement could be resorted to to cut down or restrict the rights of the grantee in the deed? We have already seen that, in the absence of fraud, etc., the rule is inflexible that the terms of an executory contract are merged in the deed which is subsequently given as fulfillment of the contract. In view of that rule the contract in question ceased to exist at the moment the deed was delivered, except, perhaps, for the purpose of aiding the court in arriving at the true intention of the parties in case there was any ambiguity in the language used by them or the subject covered in the contract. But how could the mere fact that nothing was said in the contract respecting the length of time the right to use the passageway should continue aid the court in determining what was meant by what was stated in general terms in the deed respecting the right of way? All that counsel offered to prove was that nothing was said in the contract except that Howell should be granted a right of way or right of passage through the alleyway. This right was granted to him in express terms in the deed. Had the contract contained a provision that the right should be unconditional and perpetual the deed still would control, but it might then with some show of reason be claimed that the language used in the deed should be given a broader meaning. In view, however, that such is not the case, the court could receive no aid whatever from the language which it is alleged was contained in the written agreement. Merely to state in a contract that at some future time one of the parties to it should be granted a right of way cannot aid any one in determining what is meant in a subsequent grant in which the right to the use of a passageway is limited either in respect of time or manner of use. All that can be said is that by the terms of the contract one of the parties was to be granted a right of passage through or over a specified way without defining its duration, extent, or conditions, all of which were, however, more fully defined in the deed which was given in fulfillment of the contract. Under such circumstances there is absolutely no conflict between the written agreement and the grant in the deed. We are of the opinion that the court did not err in rejecting appellant's offer of proof upon the ground that it was immaterial, if for no other reason. the said John Broom to the plaintiff, which omission or mistake had not theretofore been observed or discovered by the plaintiff." What the appellant claimed was intended to be and should have been inserted in said deed is also fully pleaded. There are additional allegations of inducement, etc., but those are not material here. In this connection we must not forget that the deed in question was made and delivered to the grantee at least 30 years before the dispute over the passageway arose. There are no allegations of concealment or estoppel, and we must thus assume that Mr. Howell, during the whole period of said 30 years, should have known, and therefore must be deemed to have known, the contents of his deed. If a mistake occurred, therefore, as alleged, he at least had all the means in his possession of ascertaining that fact, and hence must be deemed to have known of the alleged mistake, under such circumstances our statute of limitations (Comp. Laws 1907, sec. 2877, subd. 4) which was pleaded as a defense to the cause of action in question constitutes a complete bar. This action, in principle, is not distinguishable from the very recent case of Weight v. Bailey, 45 Utah, 584, 147 Pac. 899. In that case the question of the right to maintain an action to reform a written instrument was involved, and section 2877, subd. 4, supra, was pleaded as a bar. We there held that, where the facts constituting the alleged fraud or mistake are known, or where the circumstances are as in this case, that is, if the facts should have been known by the complaining party, he cannot successfully maintain an action to reform an instrument after the statutory period fixed in said section has elapsed. The decision in that case is conclusive here. We need not pause, therefore, to further consider the cases cited upon that question by counsel. The court therefore did not err in sustaining the demurrer to the second cause of action. [10] Nor did it err in sustaining the demurrer to the first cause of action, since all essential allegations on which plaintiff could In view of the foregoing we need not consider the question that the witness offered by appellant to prove the contents of the lost agreement was disqualified from testifying against the respondent as one claiming as an heir of a deceased person under Comp. Laws 1907, § 3413, as contended for by re-assert any legal right were contained in the spondent. Upon that question we express no opinion. [9] Appellant, however, also insists that the court erred in sustaining the demurrer to the cause of action wherein appellant sought a reformation of the grant in Broom's deed respecting the right of passage to the effect that the right be made a perpetual right in accordance with the alleged intention of the parties to said deed. The allegations of appellant's cause of action in that regard are that: "By the mistake of the scrivener of said deed and the mutual mistake and understanding of the parties thereto, namely, the plaintiff (Reese Howell) and the said John Broom, were omitted apt and proper words to limit, define, and characterize plaintiff's right, interest, and easement in and to said alleyway or passageway, intended by said instrument to be conveyed by third cause of action, to which the demurrer was overruled on which the case was tried and determined. For the reasons stated, the judgment should be, and it accordingly is, affirmed, with costs to respondent. STRAUP, C. J., and MCCARTY, J., con cur. On Application for Rehearing. FRICK, J. Appellant's counsel have filed a petition for rehearing in which they, at great length and with much force, reargue the question of the construction of the deed passed on in the opinion. We could subserve no good purpose in again answering counsel's arguments. It goes without saying that upon questions like those passed on in duct of a nature rendering him unfit to be continued in office. Client, Cent. Dig. §§ 51, 61; Dec. Dig. 38.] 3. ATTORNEY AND CLIENT 43-PRIVILEGE the original opinion there is room for difference of opinion. Under our system of jurisprudence, however, the duty is imposed upon us to make final disposition of all questions presented for review. In this case the judge of the district court, the writer, and both of his Associates, after a most careful consideration of the questions involved, have arrived at the conclusion that the respondents should prevail. We have given the matter the best efforts of which we are capable. We can do no more. After again carefully going over counsel's petition for a rehearing, we are still of the opinion that the original al right of free speech, slander or defame a decision is right. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. 88 59, 60; Dec. Dig. 43.] 4. ATTORNEY AND CLIENT 43-RIGHT OF ATTORNEY-FREE SPEECH-ABUSE of Court. An attorney cannot, under his constitution court. [Ed. Note. For other cases, see Attorney and Client, Cent. Dig. §§ 59, 60; Dec. Dig. 43.] 5. ATTORNEY AND CLIENT 43-DISCIPLINE OF ATTORNEY-DEFAMING COURT. disbarment. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 59, 60; Dec. Dig. 43.] 6. ATTORNEY AND CLIENT CONDUCT-DISBARMENT. 43 - IMPROPER [11] It is, however, further insisted that we did not consider nor pass on appellant's claim of the statute of limitations; that is, that it had acquired a right of passage by preAn attorney guilty of slandering or defamscription or adverse user. It would seeming a court or judge is subject to discipline and that inasmuch as we held that the right granted in the deed was a revocable one and so intended by the parties, and that the appellant entered upon and continued in the enjoyment of the right and used the passageway under the deed in question up to the time of bringing the action, and, in view that there is not the slightest evidence that it at any time repudiated the license granted in the deed nor apprised the respondents either directly or indirectly that it was using the passageway not under the deed, but under a claim of right, therefore the question of adverse user was not to be seriously considered. The question was, however, necessarily disposed of in the decision. If that be longer doubted, however, we now hold that the mere fact that the appellant continued the use of the passageway under the circumstances disclosed by the record, and as shown in the opinion, such use could in no event ripen into a prescriptive right. Where an attorney, delivering a funeral oration over the body of an executed murderer, venomously attacked the Supreme Court which affirmed the conviction, accusing the court of gious body in the state, charging the court with being improperly influenced by a powerful reliprejudice and unfairness and garbling the accounts of the trial and of proceedings before the pardon board, the attorney is guilty of professional misconduct which warrants his disbarment under Comp. Laws 1907, §§ 113, 120, respectively declaring that it is the duty of an attorney to support the Constitution and laws due courts, and employ for the purpose of mainof the United States, to maintain the respect taining causes confided to him only such means as are consistent with the truth, and that an attorney may be disbarred for any violation of his duties or for moral turpitude, for an attorney who so misrepresented the court, attempting to bring the high judicial office into disrespect, is guilty of moral turpitude. The petition should therefore be, and it Client, Cent. Dig. §§ 59, 60; Dec. Dig. accordingly is, denied. 43.] [Ed. Note.-For other cases, see Attorney and STRAUP, C. J., and MCCARTY, J., con cur. (48 Utah, 172) In re HILTON. (No. 2886.) (Supreme Court of Utah. July 1, 1916.) 1. ATTORNEY AND CLIENT 36(1)-DISBARMENT-POWER OF COURT. Courts having power to admit attorneys to the bar possess an inherent power to disbar them for unworthy behavior, unprofessional conduct, or moral turpitude, independent of any statutory authority (citing Morrison v. Snow, 26 Utah, 247, 72 Pac. 924; In re Platz, 42 Utah, 439, 132 Pac. 390). [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. § 49; Dec. Dig. 36(1).] 2. ATTORNEY AND CLIENT 38-DISBARMENT -GROUNDS. Where the statute makes a good moral character a condition precedent to admission to the bar, the court may disbar an attorney when he forfeits his claim to such character by miscon 7. CRIMINAL LAW 566-OFFENSES-PROOF OF IDENTITY. The identity of one charged with crime may be established by natural and reasonable inferences deducible from proven facts, and may rest wholly on circumstantial evidence. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1273-1275; Dec. Dig. 566.] In the matter of the charges against Orrin N. Hilton, an attorney. Respondent disbarred. C. S. Varian, F. K. Nebeker, and A. L. Hoppaugh, all of Salt Lake City, for Grievance Committee. Ira Snyder, of Denver, Colo., and Soren X. Christensen, of Salt Lake City, for respondent. STRAUP, C. J. This is a proceeding instituted by the grievance committee of the State Bar Association to disbar respondent, Orrin N. Hilton, a member of the bar of this court. It is charged in the information that he is For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes These guilty of unprofessional conduct in the par- trial, summarily discharged counsel selected ticulars that he, in violation of his oath and and employed by himself, demanded that he of his duty as an officer of this court, and be permitted to conduct his own defense in with the intent to bring the courts and judg-person without counsel, and later consented es of this state into disrepute, did falsely and that they might remain in the case. maliciously charge that they, in the discharge matters, on a complete record of all the of their official duties, were subservient to evidence and of all the proceedings in the and controlled by a religious power foreign cause, were reviewed by us on the appeal, to the laws and the Constitution of the state; which resulted in an affirmance of the judgexhibited towards them a contemptuous dis- ment. State v. Hillstrom, 150 Pac. 935. The regard of their authority; imputed to`them | opinion contains a statement of the facts, the dishonorable and unlawful motives and acts assignments of error relied on, and our reain the discharge of their official duties, and sons for affirming the judgment. No petition in furtherance thereof did willfully misrep- for a rehearing was filed, nor was there any resent the facts and proceedings of a case claim made before the court, or in any of the had before the courts of this state, wherein proceedings thereof, that the law was misthe state of Utah was plaintiff, and one Jos- applied or that the facts were misconceived. eph Hillstrom, charged with and convicted On remittitur and resentence an application of first degree murder, the defendant; and was made to the state board of pardons, conespecially did falsely charge and state that sisting of the Governor, the Attorney Genthis court, through a preponderating and an eral, and the three Justices of this court, for imponderable and undefined influence of the commutation of sentence. In that applicaMormon Church, was persuaded to take an tion Hillstrom was again represented by the attitude of hostility toward Hillstrom, and respondent. As appears by the official rethat the views expressed by this court in that port of that board, put in evidence in this case were but in consonance with the views proceeding, all of the stated grounds for comof the church; and with like purpose and mutation of the sentence were included in intent, and to bring the administration of the the assignments of error before the Supreme law of this state into disrepute, willfully and Court and there adjudged adversely to the falsely misrepresented the proceedings of the respondent's contentions. Nevertheless, and case before the state board of pardons, charg- as fully appears by the board's record, Hilled the Justices of this court, who, by virtue strom and his counsel were given every opof their office, are also members of such portunity to again review the evidence, and board, as being with others, responsible for to present any new matter, or anything addi"false, wicked, and malicious aspersions on tional deemed by them beneficial to HillHillstrom's character," and falsely and ma- strom's cause. But nothing such was atliciously attributed to such justices as such tempted or offered. The official report as to members dishonest acts and motives. The that reads: information is largely predicated on a public address delivered by the respondent in Chicago in funeral rites over the body of Hillstrom and on interviews prepared by himself and at his request published by the local press. In January, 1914, at 10 o'clock at night, two men, with masks over their faces, guns in hand, and for the purpose of robbery or murder, entered a grocery store at Salt Lake City and deliberately shot to death the storekeeper and his son. In the assault one of the assailants himself was shot by the son. Two hours thereafter Joseph Hillstrom was found 21⁄2 miles from the place of the homicide suffering from a serious fresh gunshot wound through the chest, and applying to a doctor for medical aid. Later he was identified as one of the perpetrators of the crime, charged with first degree murder, tried, convicted, and sentenced to death. The respondent, as his chief counsel, prosecuted an appeal to this court. He principally contended that the evidence was insufficient to connect Hillstrom with the commission of the offense or to show motive, and complained of rulings of the trial court respecting spectacular performances of Hillstrom, who, on the trial, without notice or cause, in the presence "The applicant before judgment was entitled to every presumption of innocence; but, after a verdict finding him guilty and after judgment and its affirmance, the presumption of innocence no longer prevails. The presumption then to be indulged is that the judgment is right and that the applicant is guilty. He, after that, had the something to justify a commutation of sentence, burden to show, or bring forward, or point out, or clemency in his favor. But neither he nor his counsel before the board attempted to point out anything wherein or in what particular they claimed the evidence was insufficient to justify the verdict. Nor did they offer or attempt to show anything respecting the applicant's life, habits, morals, or previous characwhere he was from, or what kind of life had ter, or who he was, or what he had done, or been lived by him. Nor did they offer or attempt to show anything new or additional respecting the case, or anything in favor of the applicant, or anything to justify commutation or clemency. What was urged in support of the application is this: Cases were referred to wherein we were told convictions rested alone on circumstantial evidence, and where later it was disclosed that the persons convicted were innocent. It, however, was not claimed, nor was there any attempt made to show that the facts in those cases and in this case were similar or even analogous. were made by counsel that the conviction rested Frequent assertions alone on circumstantial evidence, and that the applicant's life ought not to be taken on that kind of evidence. But, as stated by the Supreme Court in its decision, and as shown by the record, the conviction does not rest on circum |
