36 Ky. 406 | Ky. Ct. App. | 1838
delivered the Opinion of the Court.
This was an action of ejectment brought by Buford against Adams, to recover eighteen acres of land which were claimed by both parties, under Mrs. Mary Craig. It appears that, in July, 1820, Mary Craig, then the wife of William M. Craig, being seized in fee simple of the land in controversy, a deed was made purporting to convey the land in fee simple from Craig and wife to Richard Shipp; but the certificate of the acknowledgment of Mrs. Craig not being such as was requisite for passing her right of inheritance, the deed was inoperative after the termination of the coverture, which happened by the death of Craig, in 1832. Under this deed, Shipp entered, claiming the land as his own in fee simple, and was in possession until 1824, when he conveyed it in fee to Thomas Steele, who entered and was possessed in like manner until April, 1832, when he conveyed it to Adams, in fee simple.
Adams having entered, and being in possession, claiming the land as his own against all the world, leased it, in February, 1835, to Thomas Payne, until the 1st of March, 1836; and Payne, being in possession under his lease, Buford, who — as stated by one witness — knew of the defect in the deed from Craig and wife, and had said if he could buy her claim be could gain the land, entered forcibly, and ousted Payne of his possession, and occupied the land until he was turned out under a writ of restitution, awarded in a proceeding by writ of forcible entry, instituted by Payne, in September, 1835. In that proceeding, the jury in the country having found a verdict against Buford, in-, 1835, he traversed the finding, whereby the case was removed into the Circuit
On the 8th day of September, 1836, Mrs. Craig redelivered and acknowledged the original deed purporting to convey the land from her'husband and herself to Shipp, as was proved by two witnesses, before the clerk of the Woodford County Court on the following day, and certified by him upon the deed.
Upon these facts, the Court, in an instruction given at the instance of the plaintiff, based the right of recovery substantially on the following facts, submitted to the jury: viz. that the title had been in Mrs. Craig at the date of the deed of 1820 to Shipp; that her husband had died before the date of her deed to the plaintiff; that the plaintiff was in possession of the land when this deed to him was executed, and that the defendant was in possession when the declaration in ejectment was served upon him.
Several instructions were moved for by the defendant, asserting that the deed to the plaintiff was champertous; and that the law was for the defendant: first— if the deed was executed when the defendant was in the adverse possession of the land; second — if it was made when the plaintiff had a possession acquired by forcible entry; third — if it was made during the pendency of the traverse of the inquisition by which the plaintiff had been convicted of the forcible entry; and, fourth — if the plaintiff had forcibly obtained the possession with the intent to obtain the deed.
. To the refusal of these instructions, and to the granting of that which had been given, the defendant excepted; and then introduced a witness who stated that, in the summer of 1835, he had gone with Shipp to see
Another objection made to this evidence is that, if the deed had been actually re-delivered at the time when the excluded declarations of Mrs. Craig were made, (and it is not contended that the declarations conduced to prove a previous re-delivery,) then the deed was champertous and void, because the land was in the adverse possession of Buford. But as the question and doctrine of champerty is directly and necessarily involved in another part of the case, and as the propriety of excluding the evidence does not necessarily depend upon the validity of this objection, the discussion of this point is waived for the present.
It is contended further that, if the evidence in question does not conduce to prove are-delivery of the deed, or if, though proving a re-delivery, it was not entitled to any weight on that ground, still it tends to prove such an assent on the part of Mrs. Craig, to the possession of the land by those claitping under the deed, as entitled the defendant to notice to quit, before an ejectment could be maintained against him, either by Mrs. Craig herself, or the plaintiff claiming under her subsequent deed. But if it were conceded that the declarations of Mrs. Craig would have had the effect contended for, if made to a claimant under the deed who was in actual possession at the time, or if, when made to Shipp, the immediate grantee, his alienee, immediate or remote,
But a decisive answer to this argument is, that these declarations did not directly relate to the possession, but to the deed or title, and that they did not constitute, nor prove, any contract between the .parties, nor any privity, except so far as -they constituted or proved a redelivery of the deed, which would have given the right of possession, and created a privity between the parties; that as the actual delivery of the deed, if then made, would not have defeated or suspended the right of entry of Buford, under the subsequent deed to him, if the latter was valid, mere words evincing a willingness to redeliver it, could not have had that effect; and that, as Adams, like his grantors, claimed to hold the land in fee simple under the deed, and never held or claimed to hold by virtue of any assent or permission of Mrs. Craig subsequently given, and did not enter or regain the possession in virtue of any such assent, nor as her tenant, but mqrely in consequence of his previous possession, he would not have been entitled to notice from herself, if the right of entry had continued in her, and, a fortiori, was not entitled to notice from Buford as her alienee, if the right of entry was transferred to him, without notice of such assent or permission.
As the actual re-delivery of the deed of 1820, made on the 8th of September, 1836, and certified by the cleric, had no relation back, but only made the deed' operative as the deed of Mrs. Craig, from the time of its re-delivery, it could not affect the title of Buford under the previous deed of February, 1838, which had been, duly recorded; and it is entirely clear that, upon the facts pi’oved, the plaintiff had a right to recover; and the Court committed no error in giving or refusing the instructions as above stated, or in refusing a new trial; unless for some of the reasons suggested in some of the instructions moved for by. the defendant, or on the ground of some fact presented by the evidence, the deed. to the plaintiff was in violation of the act against champerty, and therefore inoperative to vest the title in him.
The first section of the act of 1824, against champenty and maintenance (Slat. Laio, 285,) declares that, no person shall sell or purchase any pretended title to land &c., of which any other person than such vendor or vendee shall, at the time of such sale or purchase, have possession adverse to the title so purchased; and makes void every deed &c., made in violation thereof. That Buford, to whom- the deed now in question was made, was in the actual possession at the time of the sale and , . , , . . conveyance to him; is put beyond question- by the evidence, and is not controverted; -and there is as little question that his possession; however tortious, was- in. his own right, and adverse to all the world. No other person then being in the actual possession, and his possession being absolutely andv exclusively his own, it is impossible, upon the mere facts, to bring the case within the letter of the act. For the vendee, and no one -else,' was in possession when the deed was made.
That the possession was gained by force, and- without shadow of right, does not change the fact that the vendee was in possession when the sale- and deed were made. Does the law, in its spirit pr policy, so regard the manner in which the possession may be gained, as that a deed must be adjudged to be champertous and void, though made to a party in the actual and exclusive possession, merely because he may have entered
But this could not have been so, if the law against champerty, at that day, had any regard, in its letter or spirit or policy, to the fact that the possession had been acquired by force and without title. It regarded only the fact of an independent possession. And it is scarcely necessary to add, that the law of champerty, at the present day, is neither more severe nor comprehensive in its letter, or spirit or policy, than it was in the days of Littleton and Coke.
The seventh section of the' act against champerty before referred to, (Stat. Law, 287,) expressly declares that, any person possessed of lands may take or bargain to take any outstanding title, of any other person, so far, and so far only, as it may confirm his former estate.— Here there is no qualification as to the kind of posses
If, then, the possessor of land, though he acquire the possession by force, may take a conveyance of the outstanding title without danger from the laws against champerty, is he put in a worse condition if, instead of entering simply with the design of gaining a tortious possession, or estate, and holding on to it, if he may, until it is confirmed by time into an indefeasible estate, , . .... . ,. . . ,r, he enter with the intent of obtaining, if he may, an earlier confirmation, by procuring a conveyance of the outstanding title to himself?
As the unlawful entry is not itself champertous, and does not make the subsequent conveyance champertous, it seems impossible that the superaddition of a pre-existing intention, which, existing in the mind of the wrongdoer alone, can only be a desire or wish to procure a conveyance, if it can be done, or the intention to acquire the possession forcibly, as a means of procuring the title lawfully, if it can be done, should make the transaction, or any part of it, champertous.
We can easily conceive of a case in which, although a deed,if compared with the circumstances actually ex-' isting at its date, would not seem to be champertous, yet it would, upon view of the entire transaction connected with it, be a violation, or evasion, of the champerty law. But this must be when and because there
It may indeed be said that, where a person without title or claim enters on the possession of another, and afterwards obtains a conveyance from a third person, and especially if, before his entry, he appears to have contemplated the procurement of a conveyance from the same person, it may be presumed that there was some previous understanding between them, more or less explicit, which induced the forcible entry, and which
With regard to the fact that the conveyance to Buford was made during the pendency of the proceeding against him under the writ of forcible entry — we deem it only necessary to say that, although the pendency of a suit may, under certain circumstances, aggravate the offence of selling the land which is in litigation, when neither vendor nor vendee is in possession, yet we do not understand that a person who is in possession is, by any statute or principle of law prohibited from taking the conveyance of an outstanding title, merely because he is defending his possession in a legal proceeding instituted against him, for the possession. And although
From this view, it not only follows that there is nothing in the case as presented, which can invalidate the deed to Buford, or his right of entry under it, on the ground of champerty; but it seems also to follow that if, while he was in possession, Mrs. Craig had re-delivered the ancient deed, or made a new one to Shipp, or his alienee, or made any other conveyance or contract for transferring an estate in the land to a person out of possession, such re-delivery, or new conveyance, or contract, would itself have been champertous.
Upon the whole case, therefore, although it, would seem that Buford, without a shadow of right, so far as appears, committed an outrage, in violation of the rights of his neighbor, and of the laws of the community, we cannot say that this outrage was an offence against the laws relating to champerty, or that, by any law, the subsequent conveyance to him, was void, or in any manner ineffectual to vest in him the right of entry, which is sufficient to maintain his action of ejectment. If the facts exhibited in the present case are such as, in the opinion of the law-making power, should disqualify the wrong-doer from acquiring any right in consequence of a possession gained by force, that department of the government has the means of prevention, as to future cases, in its own hands.
The opinions of the Circuit Court, presented by the’ exceptions, being conformable to our view of the law as it is, the judgment must be affirmed.