13 Johns. 466 | N.Y. Sup. Ct. | 1816
delivered the opinion of the court.
It is admitted, that when the defendant gave the deed, which is the'act of champerty complained of, he had no knowledge of the adverse possession of Hassenfrats or Brink. In truth, therefore, the deed was not given for maintenance. Indeed, it does not appear, in point of fact, that the plaintiff, when he entered and took possession of the 100 acres in the north-east corner of the let, so entered under a claim of title; nor does it appear that when he contracted to sell to Brink, two years afterwards, that he agreed to sell any other than his possessory right. To produce the consequences of a violation of a penal statute, exposing the party to a forfeiture of the value of the land sold, it ought to appear, expressly, that there was a person in possession at least claiming to own -the land. From the facts in this case, that does not appear. The plaintiff may have been a mere intruder upon the land, without claim or colour of title, and his agreement to sell to Brink may have been merely for his possession. ■ The court, therefore, are of opinion, that the defendant has been guilty of no offence within the statute, and, on this ground, we think judgment should be given for the defendant. I am prepared to go further. My opinion would be, that had it appeared that
- The statute intended to punish persons for selling .pretended rights to land, for the purpose of maintenance, and when it is evident that such intention did not exist, there can be no, offence. A contrary argument may be derived from the statute, which subjects the taker, or buyer, to the same penalty a's the seller,' if he knew the sale to have been made against the provisions of. the act, indicating, that if-the taker, or buyer,, did ;not know it, he should not incur the penalty; and as the statute' is silent as to the knowledge or ignorance of the seller, it may bé inferred, that the legislature intended to punish him, without,regard to that, fact, on the ground that he is chargeable, with, the knowledge of the state and circumstances of his own lands; It would be the legal intendment, undoubtedly,'that every man knew; the situation of his real property; but if he could show that lie did not know it, it would be very Unreasonable to subject him to a penalty, for an offence perfectly unintentional.. The deed, under such-circumstances, would be void and inoperative, and. there is no good reason why an innocent person, unconscious of offence, should be punished beyond that. In the case of Partridge v. Strange & Croker, (1 Plowd. 80. 88. 1 Dyer, 746.) ah exception was taken to the declaration, that there was no averment that the bargain and sale was for maintenance, and the court held it to bé a good exception, and that the plaintiff had not shown the case to be within the danger of the statute, saying, that was the point of the'statute. -If it was necessary to make that averment, it was necessary to show a state of facts proving it to be true; and where it ejearly appears, that the bargain and sale Was not for maintenance, the spirit and intention of the statute are not infringed. This was clearly the,inclination of the late chief justice’s opinion in Jackson v. Demont, (9 Johns, 59.,) though this precise point was not then before .the court.
In the casé of Jackson v. Selleck, (8 Johns. 262.) the question was; whether.a feme covert, being the owner of wild and uncultivated land, was to be considered as in fact possessed so as, on her death, to give to her husbánd a tenancy by the curtesy, without ail actual entry, or pedispossessio ; and it was held that she' was. The late chief justice,, delivering the unanimous opinion of dm cpurt, said, “ we must take'the rule with such a construction as
Judgment for the defendant.
