Bentinck v. Franklie, 38 Tex. 458

Bentinck v. Franklie

38 Tex. 458 | Tex. | 1873

Walker, J.

Joseph Franklin brought this suit against Henry W. Bentinck to recover certain lots in the city of Galveston. The defendant pleaded “not guilty;” also the ten and five years’ statutes of limitations. He also set up title in himself under a purchase at tax sale, and likewise outstanding title.

It appears that the Galveston City Company, through which the plaintiff claims title, purchased the lots at judicial sale. This title is attacked, and the Galveston City Company is made a party. The errors assigned, on which we are asked to reverse this case, are five in number, viz.: “First — The court erred in the charge as given.” “Second — The court erred in excluding the evidence offered under the defense of champerty.” “Third — The court erred in excluding the evidence offered under the defense of estoppel.” “Fourth — The court erred in excluding evidence under the defense of ten years’ non-entry.” “Fifth — The court erred in entering up judgment on the verdict.”

The question raised by the first of these assignments has been settled by this court in Bender v. Crawford, 33 *472Texas, 745, and subsequent cases. We hold that statutes of limitation have reference to the remedy, and do not in any sense confer a vested right, and that it was perfectly competent for the people in adopting their organic law to declare the suspension of these statutes. It was done upon the maxim inter arma leges silent. We have also held that the land laws conferring title by prescription are statutes of limitation, and ..come within the principle of the 43d Section of the 12th Article of the Constitution. The second assignment of error is that most insisted on by counsel. Whether the law prohibiting champerty, or campi partitir, is to be regarded as a part of the common law, and in force in this State, is the question presented. The question has been before this court in White v. Gray, 1 Texas, 384; McMullen v. Guest, 6 Texas, 275; and Carder v. McDermott, 12 Texas, 553; and it is also claimed that the court passed upon the question in Clarke v. Koehler, in 32 Texas, 684. In the latter case the question of champerty was not before us on the pleadings in the case; the court simply disapprobating the conduct of one of the parties, applied to it the term champerty, adjectively, without meaning to be understood as applying the penalty of champerty to it, or holding that the law of champerty was actually in force. The law has not been recognized as in force in this State by any of the former decisions.

Whether the English statutes prohibiting common barratry, maintenance and champerty have ever come to be regarded as a part of the common law of England, even in that country, we think, is somewhat doubtful. They have certainly not been so considered by the courts of this country, unless in the State of blew York, which would be regarded as an exception to the rule. The English statutes, if not in terms, have been in principle adopted by the Legislatures of some of the States; but *473neither of the statutes passed in the reign of Edward I. nor Edward III., nor has that of 8 Elizabeth, c. 3; 13 George I., c. 39; nor 33 Henry VIII., c. 9, ever been adopted by the Legislature of Texas.

If, then, they have not become a part of the common law of England, they form no part of our system.

It is more than probable that the political power of our State has never regarded the principle contained in the English statutes as necessary or applicable to the condition of our people. A law which would prevent the officious intermeddling in the suits of others, in no way concerning parties so interfering, might be a salutary law in any State or community; but it cannot be denied that cases often present themselves to the profession in which a good man may do a service to humanity by espousing the cause of the weak against the strong.

The offense of common barratry is a species of immorality against which no law is necessary to warn the American profession.

The reasons which led to the enactment of 33 Henry VIII. do not exist in this country. In a country where all the lands embraced in what was once three kingdoms are owned by about eleven thousand persons, who form a strong landed aristocracy, such a statute as that of 33 Henry VIII. might serve to keep the land titles within these aristocratic limits ; but in this country we have land for the millions; and if a lawyer helps his client to recover lands from the possession of another, and even takes a part of the land for his fee, if the right of his client is clear to the land, we are unable to see any immorality or breach of professional ethics in the transaction. Tet it would certainly be very wrong for attorneys to become mere jobbers and speculators, to hunt up rotten titles and ferment litigation.

*474¡Regarding the third, fourth and fifth errors assigned as not well taken, we affirm the judgment of the ¡District Hourt.

Affirmed.