20 Tenn. 452 | Tenn. | 1839
delivered the opinion of the court.'
The question mainly discussed in this case, and upon the ground of which the plaintiff in error seeks a reversal of the judgment below, is whether the concluding words of the first section of the act of 1821, ch. 66, commonly called the “champerty act,” shall be so construed as to make the meaning of the entire section to be, that an adverse possession at the time of making the deed, covenant or agreement shall create a presumption of champerty as to such deed, covenant or agreement which shall stand only until the parties to such deed, covenant or agreement shall show that as between themselves the conveyance or contract to convey was fair and bona fide. Such construction would be in direct conflict with the policy of the statute and with the express words of the enacting clause, which provides that when the vendor or those under whom he claims shall not have been in actual possession at the time of such sale, &c. and for one whole year before, such sale, bargain, grant, &c. “shall be utterly void.” But it occurred to the framers of the law that at that time there was much granted land in Tennessee of which no person was in “actual possession” or receiving rents or profits, and in such case the first proviso enacts that one claiming title may bargain, sell or mortgage, there being no adverse possession at the time, and that in all cases sales at execution may proceed as formerly. Again; it occurred to the framers of the law that much of the uncultivated land in Tennessee was held by non-resident claimants, the sale of which to actual settlers it was the policy of the State to encourage and not to obstruct, and they provide that the act shall not be so construed as to prevent a sale by such person, if the land be not adversely held and possessed at the time. But apprehending that cases might arise, by virtue of these provisions, tending to weaken the force and obstruct the policy of the statute, and that in many cases the actual settler who was sued in ejectment might, from the difficulty of showing dates as to the commencement of the