13 Ky. Op. 766 | Ky. Ct. App. | 1885
Opinion by
B. E. Thacker purchased one hundred acres of land from John Sharpe by title bond; and in 1871 gave or dedicated by parol about half an acre of it, worth not over $10, to school district No. 16 of Warren county for educational purposes. It was surveyed, and the district has held possession of it since the gift and built a schoolhouse thereon, worth $350. Subsequent to this gift Thacker sold by bond about eleven and a half acres of the land to one Lucas; and after this, Sharpe having died, Thacker, claiming that he had fully paid for the land, brought an action, against his heirs for a title to it. They, however, asserted a lien and obtained a judgment for unpaid purchase-money; and the one hundred acres of land or enough to satisfy the debt were ordered to be sold. Before the sale was made the appellant and Thacker made an arrangement by which the former was to buy the land outside of the Lucas land, but including the schoolhouse one-half acre, at the amount of the Sharpe debt, and the purchase-money debt owing by Lucas was to be assigned to the appellant for Thacker’s benefit. This arrangement was carried out; and the appellant, having obtained a commissioner’s deed to the eighty-eight and a half acres of land, brought this action in ejectment on September 28, 1882, to recover the half acre from the school district. It was not a party to the Thacker-Sharpe suit, although it should have been made a defendant.
It also appears that prior to February, 1882, and before this suit was brought, the appellant had sold all the land to Elias Gott, who is not a party to this action; and the school district was in the actual possession of the half acre of land when this sale was made, as well as when the appellant brought it, claiming it as its own. It is urged that, by reason of such possession and claim of the dis
It appears, however, that before the appellant brought this suit he had sold, the land. The gist of his action is that he is the owner of the land and entitled to the possession of it. It is urged that, as the school trustees claim to be holding it adversely, the sale to Gott was therefore champertous and that therefore the appellant can disregard the sale, and bring the action in his name because a champertous sale is void and leaves the title in the vendor.
It is unnecessary to decide whether the fact that the appellant and appellees claimed title through the same party renders the possession of the appellees amicable and not adverse, and the sale to Gott therefore not champertous. Whether the possession was amicable or adverse matters not as this record stands. If amicable, and the sale not champertous, then certainly the appellant is not the owner or entitled to the possession of the land, and hence can not maintain this action. This is •true if adversely held, because it is proved that the sale was made to Gott, and that he still holds the title bond and has the equitable title; and it does not appear that the contract of the sale has ever been abandoned or rescinded. It may be said, however, that it was void ab initis. The object of the champerty law is to protect bona fide occupants of land from vexatious litigations upon champertous contracts. The lawmaking power in enacting the statute had in view the peace of society and the repose of occupants, and it is not a matter of public concern whether such contracts as to the parties to them are valid or invalid. The defense of champerty is as available where the action is brought in the name of the vendor for the same purpose as if it had been brought in the name of the champertous vendee.
We do not mean to hold that if the owner of the land makes a champertous sale of it his title is thereby forfeited, or that he can not thereafter sue for it; but in order to do> so he must first abandon or rescind the champertous contract. It is said in the case of
In this instance the action is in the name of the vendor, Hobson, alone; but his vendee holds a title bond from him for the land, and there is no testimony whatever that the contract of sale has ever been abandoned or rescinded; nor is it even so alleged in the appellant’s pleadings. Under these circumstances the fair conclusion is that the action is in fact for the benefit of Gott; and it follows that, even if at the date of the sale to Gott the possession of the appellees was adverse and not amicable, yet the appellant can not recover. He is seeking to recover the land which he does not now own, and did not own when the action was brought, and to the possession of which he was not then and is not now entitled.
Judgment affirmed.