Jackson ex dem. Bryant v. Ketchum

8 Johns. 479 | N.Y. Sup. Ct. | 1811

Per Curiam.

The principal question is, whethe deed from Cox to Bryant is not void. It was executed bn the 14th July, 1810. It was a quitclaim deed^ and for the consideration of 300 dollars-, and it purported to convey lands -worth 2,500 dollars. A verdict in ejecthierit for the lands in question, had passed against Cox-, at the circuit court, in June-, preceding the sale, and -Bryant, at the time of the purchase, knew of the trial and verdict.

Upon these facts, we consider the deed tó be void, under the act to prevent and punish champerty and maintenance. (Laws, vol. 1. 343.) The first section declares, “ that no officer or other person shall "take Upon him any business that is or may be in shit in any court, for to have part of the thing in plea or dehiahd, and no person upon any such agreement shall give Up his right to another, and every such conveyance or agreement shall be void.” This provision contains the substance of the English statutes of West. 1. c. 25. West. 2. c. 49. and 28 Edw. 1. c. 11. on this very point. The statute of West. 1. enacted that no officer, See. should maintain pleas, &c. hanging in the king's courts for lands, he. for to have part or profit thereof, by covenant made, &c. The statute of West. 2. extended also to the public officers of justice ; but the 28 Ediv. I. enacted that no officer nor any other, for to have part ofthé thing in plea, should take upon him the business that is in suit, nor upon any such covenant shall give up his right to another, he. Our .statute is nearly verbatim with the last, which also ehxbraced the substance of the other two, and it undoubtedly never meant to weaken the force, or destroy the application of the decisions under those ancient statutes, and which had become incorporated into the body of the common law. Our act has even a more explicit provision than these English statutes, when it declares, “ that every such conveyance and agreement shall be void.” The established doctrine, under these statutes, is, that a purchase, or even a gift, of the land, while a suit is pending concerning it, if it be made with knowledge of the suit, and be not the consummation of a previous bargain, nor founded on the ties of blood, is within the purview of those statutes. (Hawk. b. 1. c. 84. tit. Champerty. 2 Inst. 563, 564.) ¡It is, in the language of our statute, the “ giving up his right to another,” when that right is “in plea or' demand.” In M. 8 Edw. IV. 13. b. it was held by the justices, that a sale or gift of lands-, pending the suit, was within the statutes, for the law prohibited every one from purchasing pending the suit. Even a bona jide purchase pending the suit, was held by all the serjeants, in 50 Ass. pl. 3. to be champerty ; for, by intendment of law, the purchaser must and would aid the suit, to save himself from loss. So strict was the ancient law on this subject. Though this point is sought to be questioned, so far as misdemeanor and punishment are involved, yet the policy of the law may well require that every such conveyance -be adjudged void. In Mowse v. Weaver and Postern, (Moore, 655.) the same doctrine was held, .that the purchase of land, during a Its pendens, was champerty, within the purview of those ancient statutes, though not punishable under the 32Hen. VIII. made against selling pretended titles. There is, indeed, no case that holds such a purchase valid, except in particular instances,- where there is no ground for the inference of champerty; as where a man delivered seisin, after suit brought, in consequence of a previous bargain. (Fitz. tit. Champerty, pl. 15.)

The present case is stronger than any to be met with in the books. It is too gross and palpable a violation of the statute, to uphold a doubt as to the malafdes of the transaction. The purchase and quitclaim, for less than one eighth of the value of the land, and after the knowledge of the verdict in ejectment against Cox, are circumstances that mark this case, and render the conclusion of law upon the facts inevitable.

The verdict must, therefore, be set aside, and a new trial awarded, with costs, to abide the event of the suit.

New trial granted.