14 Wis. 131 | Wis. | 1860
Lead Opinion
By the Court,
This suit was brought by the re.spondents to obtain, partition of certain real estate. } complaint sets forth that Job Barker died leaving there-jspondent Phcebe his widow, and Walter Barher and Angdine 'March, two children by a former wife, and six children by said Phcebe, his heirs at law, each entitled to one-eighth of the real estate, subject to her right of dower. It avers that her dower had been assigned, and that she had purchased the shares of Walt&r Barher and Angdine March, but that notwithstanding the purchase, they still pretend to have some interest in the premises.
Answers were filed by Walter Barken' and Angeline March, claiming that the purchase of their shares was void by reason of fraud, consisting of concealment of material facts, misrepresentation and undue advantage on the part of Phoebe Barlcer, who was administratrix of the estate at the time.
The first question is, whether these purchases are to be set aside.
But if not set aside, it is then claimed that the adminis-tratrix, in making them, used the funds belonging to the estate, and that therefore, instead of being entitled to these two shares in her own right, she should be adjudged to hold them in trust for the other - six heirs. The decree of the court below was in favor of the respondent Phcebe Barher. The infant heirs were represented by a guardian ad litem, but have not appealed. And the position last referred to, is urged here only by Anson Rogers and Mary Rogers, the latter being one of the heirs.
Upon the first question, the conclusion to which we have come will preclude an examination of its merits upon the testimony. "We might say, however,- that we are satisfied that no actual fraud or deceit was practiced by Phoebe Barher in the purchase of the two shares. And if the sales could be set aside at all, it could only be by an application of those rules which govern in the case of a purchase of trust property, by a trustee from the cestui gue trust, which it was contended were applicable here.
But we are fully satisfied from what appeared in proof,
We think therefore that this defense, which is in substance a suit to set aside the sales for fraud, seeking affirmative relief, is prosecuted in pursuance of a champertous agreement, and that for that reason it ought not to be entertained by the court.
It may be that some of the evidence going to show this agreement would not have been admissible upon the strict rules applicable to evidence upon the merits of the case. But the question whether a suit is prosecuted upon a champertous agreement, is one outside of the real merits of the case. And although an issue might possibly be made on it, yet we think it need not necessarily be pleaded, but that if it comes to the knowledge of the court in any proper manner, it will refuse longer to entertain the proceeding. It would seem to stand upon similar grounds with an action for divorce prosecuted by collusion between the parties. The court, in arriving at a knowledge of the fact, would not be confined to the strict rules applicable to evidence offered on the trial of the ease, though it undoubtedly should not proceed upon mere suspicion, or without giving opportunity for avoiding the alleged champerty by proper proofs on the other side. In this case the evidence is such as leaves no doubt in our minds of the existence of the agreement, and its existence is assumed in the brief of counsel for the appellants.
The strictness of the law relating to champerty and maintenance has been "greatly relaxed, and with reason; yet it is still very generally recognized as an existing substantive part of the common law, and has been frequently enforced by the courts of this country. Rust vs. Larue, 4 Litt., 411; Brown vs. Beauchamp, 5 Mon., 413; Hoyt vs. Thompson, 3 Sandf. S. C. Rep., 430; Arden vs. Patterson, 5 Johns.
l The remarks of the court in the. case last mentioned seem k «o us proper to be adopted here. They notice the fact that (the law upon the subject had been much relaxed, yet upon $he ground that it was a well established part of the common law, and generally recognized as such, although there was no statute in regard to it in that state, they held that if reasons existed for its abrogation it should be done by the legislature and not by the courts.
In Webb vs. Armstrong, 5 Humph., 379, it was held, that if it appeared satisfactorily to the court in proof, that the suit in its origin and progress was affected by champerty, it was its duty “ not to permit itself to become the organ and instrument to consummate such agreements, but to repel the plaintiff and his suit.” See also Morrison vs. Deaderick, 10 Humph., 342. In Hunt vs. Lyle et al., 8 Yerg., 142, a bill in equity had been filed to enjoin a judgment obtained in pursuance of a champertous agreement. The court said: “If there was champerty in prosecuting the suit at law, application ought to have been made to that court, the fact ascertained, and the suit dismissed.”
We feel bound therefore to hold that, with such qualifications as the authorities have established, the common law in regard to champerty prevails in this state, and that on its appearing to the court, in any satisfactory manner, that a suit is prosecuted in pursuance of a champertous agreement, it ought not further to entertain it.
But it is claimed that the effect of this doctrine is avoided by the fact that Rogers was related by marriage to Walter and Angeline, his wife being their half sister, and also that he had, by reason of that fact, an interest in litigating the question. Several authorities were cited sustaining the general proposition, that the common law rules upon this subject have been considerably modified; which causes were mostly as to the sale of lands held at the time by adverse title.
But the case bearing most nearly on the point was that of Thallhimer vs. Brinckerhoff, 3 Cow., 623. The court of er
But it is true that the opinion of the chancellor furnishes support for the proposition that the relationship alone would justify the one party in maintaining the suit of the other. And it must be conceded as established that a near relationship either by blood or marriage, will justify what would in its absence be maintenance. The counsel in the case of Thallhimer vs. Brinckerhoff, contended with great force that there was a distinction between maintenance and champerty in this respect, and that while relationship might justify the former it could not the latter. There is a clear distinction between the the two offenses, though champerty is a species of maintenance. But the opinion of the chancellor rejects this distinction, so far as the justification by relationship is concerned, and holds that wherever mere maintenance would be justified, the party maintaining may contract for his compensation, as well out of the property to be recovered, as of any other. But this proposition seems liable to serious question when the object of the law against champerty is remembered. That object is to prevent strife and litigation, and this it aims to secure by forbidding parties not interested to contract for an interest in the thing to be recovered, upon condition of their carrying on the suit. How mere maintenance among -relatives is not inconsistent with this object.
In regard to the other question, it is clear that the admin-istratrix did use at least a part of the funds of the estate in purchasing the shares of Walter and Angeline. And the other heirs would undoubtedly be entitled to have those shares treated as trust property, to some extent if not entirely, unless that result is prevented by other facts appearing in the case. And we think it is prevented by the fact that the administratrix has accounted before the probate court, whose decree was affirmed by the circuit court, for all the property of the estate which ever came into her hands. It seems clear that the heirs are not entitled to hold her to this account, upon which she pays back all the property of the estate for which she was ever liable, and also to follow any particular portion of it which she may have applied to the purchase of real estate in her own name, into the real estate, and have that adjudged to be held in trust for them. This may be illustrated by any case of ordinary trust. If the trustee uses the funds to buy real estate in his own name, the cestui quo trust has an election either to hold him personally responsible for the money, or to follow it into the land and have that adjudged trust property. But he cannot do both. And electing the one remedy is a waiver of the other.
It appears from the record that the proper notice of accounting was published, and also that the heirs, with the exception of Walter and Angeline, were represented in the probate court and in the circuit court. The items used by the administratrix in the purchase of these shares, are contained in the account, and are included in the balance of over four thousand dollars, for which a decree was rendered against
For this reason we think the judgment of the circuit court must be affirmed, with costs.
A re-hearing was afterwards granted, and the case was finally disposed of by the following decision:
Rehearing
By the Court,
A motion for a re-hearing was granted in this case, for the reason that upon one point our former decision was based úpon a mistake of fact. We supposed that the administratrix had fully accounted before the probate court for all that she -received from the estate, including the two accounts against Walter and Angeline, used by her in the purchase of their shares. But it appears from a closer inspection of the account, that although she was charged with those items in one part of it, she was credited with them in another, thus leaving them out of the general balance against her, and leaving the heirs at liberty to follow, to that extent, the trust funds into the lands purchased by her. The result of applying the principles stated in the former opinion to this state of facts, is, that Phoebe Barker must be adjudged, to hold in trust for the heirs of the estate, such proportion of the shares of Walter and Angeline, as the amount of the accounts against them was of the entire consideration paid by her for their shares. If any of the trust funds, beyond the amount of those two accounts, was actually used to pay for those shares, for that the ad-ministratrix has accounted, and the rule stated in ¿he former opinion must govern. The heirs cannot have a personal
But Walter and Angelina being equally interested with the other children in the personal property of the estate, would be equally entitled with them to an interest in that portion of their shares which the administratrix is adjudged to hold in trust for the heirs. They would thei’efore be entitled to have adjudged to them each one-eighth of that portion, in this suit, were it not for the fact that the entire defense on their part, which sought first to set aside their sales entirely, and secondly to establish the trust in their favor, is carried on by the defendant Rogers in their names, in pursuance of a champertous agreement. Our conclusion as to the existence of the law of champerty in this state was vigorously assailed on the re-argument; but after carefully considering what was then said, we are not disposed to change it. It is true that some courts in this country have held that part of the law obsolete; but we think with the supreme court of Massachusetts, referred to in our former opinion, that if a change is desirable, the legislature and not the court should make it. Nor do we think any of the statutes referred to have that effect. Sec. 214 of the Code of 1856 was designed merely to leave the matter of the fees of attorneys and counsel to the agreement of the parties, and was obviously not intended as a repeal of the law of champerty, else it would not have been confined to the employment of one class merely. Nor does the repeal of the law making void conveyances of land held adversely to the grantor, relate directly to the law of champerty. That law may have been founded on the same policy, but it was a provision entirely distinct from that concerning champerty, and the one may exist or not exist without any reference to the other. We must therefore hold that with such relaxations as were referred to in the former opinion, the law of champerty exists in this state. But there is a peculiar difficulty in applying that law to this case. Ordinarily the parties to a champertous agreement appear as plaintiffs, and a dismissal of the suit would not be a bar to a new suit freed from champerty. But here the parties to the champerty appear as defendants, asking
In our former decision we stated that we were satisfied from the evidence, that no actual fraud was practiced by the widow in the purchase of those shares, by which the sale could be set aside. We will now add, upon a further consideration of the question, that we are satisfied that she did not stand in any such relation to them, as would avoid the sale by an application of the law concerning the purchase of the trust estate by the trustee from the cestui gue trust. Where that rule is applicable, we have adhered to it strictly. Gillett vs. Gillett, 9 Wis., 194. But here we think the rela-71 . V tion of trustee and cestui que trust with respect to the real estate, did not exist. The administratrix had no title to it, but it descended to the heirs. True it was liable, if necessary, to be sold to pay the debts of the deceased, by virtue of a statutory proceeding for that purpose. But in this case the necessity authorizing such a proceeding did not exist ; no such proceeding was had; and the mere possibility of it in case the necessity had existed, does' not make the admin-istratrix the trustee of the heir, and incapacitate her from purchasing his interest in the real estate.
It follows therefore that all that Walter and Angeline would in any event be entitled to, is 'each one-eighth of the
it was contended by the counsel that the court below improperly admitted in evidence the copy of the champertous agreement, because the notice to produce the original was only given at the trial. Such a notice is undoubtedly insufficient to justify the admission of secondary evidence, where it appears that the party notified has not the paper in his possession at the trial. But we think the facts stated in the case would have justified the court below in inferring that he had the paper present. When called on to produce it, he and his counsel “said nothing.” Afterwards they offered to show that “he resided at a distance of forty miles," without however stating or offering to show that he had not the paper with him. We think upon such conduct the court was justified in assuming that he had the paper with him, and in admitting secondary evidence if he refused to produce it.
The result of our conclusions requires the judgment of the circuit court to be modified by deducting from the land awarded to Phoebe Barlcer, six-eighths of the portion herein-before indicated as held in trust by her for the heirs, and by adding one-eighth of that portion to each of the shares of the six children by the second marriage. This would still leave two-eighths of that portion with Phcebe Barlcer, but the judgment to be entered without prejudice to the rights of Walter and Angeline to bring suits within a limited time, freed from champerty, to recover each an eighth. The only doubt we have had as to the propriety of such a judgment, arose from the provisions of the statute relating to partition, requiring the court to settle the rights of the parties, and to render a judgment that “ the partition made shall be firm and effectual forever,” &c. But we have come to the conclusion that this was not designed to prevent the possibility of a conditional judgment in such cases, where the attainment of justice and the preservation of the rights of the parties seemed to make it essential. The judgment would then have all the effect given to it by the statute, subject to the conditions expressed on its face.