157 Ga. 107 | Ga. | 1923
Gowen and Vickery brought their equitable petition against the New Orleans Naval Stores Company and J. M. Pineda, for injunction to restrain defendants from boxing, cupping, or working the pine timber on a certain designated lot of land. Subsequently Isham Aldridge came in, and, alleging that he was the warrantor of the defendants named in the petition, was on his own motion made a party defendant along with those named. In due course the case came on for trial before a jury; and when the evidence for the plaintiffs was closed the defendants moved the court to exclude from evidence a lease introduced by plaintiffs, on the ground that the lease was a champertous contract, illegal and void, and that it was shown to be void by the evidence of the plaintiffs. The court sustained the motion on the ground stated, and excluded the lease from evidence; and thereupon the defendants further moved the court, without having introduced any evidence on their part, to direct a verdict in their favor. This' motion the court also sustained and directed a verdict accordingly. The plaintiffs filed their bill of exceptions, assigning error on the ruling of the court excluding the lease from evidence, and also on the order of the court directing a verdict for the defendants.
“A contract which is against the policy of the law cannot be enforced; such are contracts tending to corrupt legislation or the judiciary, contracts in general in restraint of trade, contracts to evade or oppose the revenue laws of another country, wagering contracts, contracts of maintenance or champerty.” Park’s Ann. Code, § 4253. In the case of Meeks v. Dewberry, 57 Ga. 263, it was said: “Our statute, Code, section 2750, declares that a contract against public policy cannot be enforced, and among such contracts it specifies, ‘contracts of maintenance or champerty.’ If this contract be champertous, then it cannot be enforced. Is it champertous ? Our statutes give no definition of champerty. We must then go to the common law, or statute law of England before the revolution, to find its definition. It is the unlawful maintenance of a suit in consideration of a bargain to have a part of the thing in dispute, or some profit out of it, and the promise to pay the expenses or costs seems to be essential to constitute it. 4 Blackstone, 135; Chitty on Contracts, 584; Hawkins’ Pleas of the Crown, 463. Accordingly, in 54 Georgia Eeports, 288, in the case of Moses v. Bagley & Sewell, this court held a contract not champertous, because there
Under the rulings made in the Georgia cases from which the above quotations are taken, the lease relied upon by the plaintiffs, which was essential to establish their right to recover, was champertous, and therefore illegal and void. The uncontroverted evidence introduced by the plaintiffs, when questioned in regard to the consideration of the lease, shows the champertous nature of the contract. It is unnecessary to consider the evidence tending to show title in the lessors of the plaintiffs in error. Conceding that the lessors had such title to and interest in the property leased as would convey a leasehold interest to the plaintiffs, the plaintiffs could take nothing under the lease in question if it was void, and it was void if champertous. As showing the champertous nature of the contract, we quote the following from the testimony introduced by the plaintiffs. Frank Murray, one of the lessors, testified : “I told Mr. Yickery [one of the plaintiffs who secured the lease] years ago how this property came down. . . He said he would
Vickery himself testified in part as follows: “I had an agreement with them by which I was to pay the expense of litigating the title and they were to make a lease to this timber in addition to cash payments. I paid different prices to the other heirs. I paid some of them $5.00, and I paid some $10.00, whatever I could buy it for and whatever agreement I could make with each individual heir. I paid some $5.00 and some $10.00. The ones I could buy for $5.00 I got them for five; and if he insisted $10.00 I paid him ten. When I got to Waycross I consulted my lawyer, and he began the preparation of the suit. I went on getting the lease signed. I don’t know whether he was preparing the suit at that time or not. He hadn’t prepared it at that time. . . T told him I was expecting to need him. The day before I saw the boxes there I got some heirs signed in Florida. I already had a lease from some of the heirs at that time. I told him [plaintiff’s counsel] to prepare the proceedings, and I went to Blackshear and got some heirs there to sign it. I think I got the heirs there to sign it before that. I came back and started to Camden County to get Frank to sign it, and met him there, and he signed the lease here. He had signed the agreement before. He signed the lease after 1 came back. The agreement was that I was to pay the attorney’s fees and stand the expenses of litigating the title to this lot of land, and that in addition to the small cash consideration that I paid these heirs-that they were to make this lease to the.
While under the evidence submitted by the plaintiffs, the lease having been excluded, a prima facie case was not made for recovery, the court should not have directed a ver diet, for the defendants. “The proper practice, where the plaintiff fails to make out a prima facie case and the defendant offers no proof, is to enter a judgment of nonsuit.” Zipperer v. Savannah, 128 Ga. 135 (57 S. E. 311); Williams v. Perry, 136 Ga. 453 (71 S. E. 886). Our attention is called, in the brief of counsel for defendants in error, to the case of Thompson v. Etowah Iron Co., 91 Ga. 538 (17 S. E. 663), where it is ruled that “Where the plaintiff fails to ma.kA out a case, and the presiding judge, after so deciding, announces, that he intends to direct a verdict for the defendant, thus giving the
Judgment affirmed, with direction.