20 Ala. 521 | Ala. | 1852
The case of Gillespie v. Dew, 1 Stew. 229, and Blevins v. Cole, 1 Ala. Rep. 210, are directly to the point, that the owner of lands may maintain trespass against a wrong doer, where there is no adverse possession, and the current of American authority is to the same effect. Van Brunt, et al. v. Schenck, 11 John. 385; Bush v. Bradley, 4 Day, 306; Con. Society v. Baker, 15 Verm. 119; Dobbs v. Gallidge, 4 Dev. & Bat. 68; McGran v. Bookman, 3 Hill S. C. 265; Leadbetter v. Fitzgerald, 1 Pike, 448; Cohoon v. Simmons, 7 Ired. 189. The charge of the court, therefore, as to the facts, which would make McCall a trespasser, was coirect.
If, however, by the terms of the covenant, the defendants in error, as against McCall, are not to be considered as the true owners of the land, then the only question raised by that portion of the charge we are considering, is, as to the effect of a contract made by a trespasser, for the transfer to a third person, of the possession which he had tortiously acquired. We all agree, that a contract of this character cannot be sustained. We can view it in no other light than as a contract, on the part of the seller, to dispose of that which he has wrongfully acquired, and which he has no right to retain; on the part of the purchaser, it is buying the privilege to continue a trespass. A court of justice will not lend its aid to enforce a contract of this description. Toler v. Armstrong, 11 Wheat. 258; McCaleb v. Price, supra.
The charge given by the court, that if the suit of Pryor against McCall was pending at the time the covenant was entered into, such covenant was void, on the ground of maintenance, cannot be sustained. Maintenance is the officious assistance, by money or otherwise, proposed by a third person, to either party to a suit in which he himself has no legal interest, to enable them to prosecute or defend it. Story on Con. § 578. But the doctrine of the common law as to maintenance does not apply to persons who either have any legal interest in the suit promoted by them, or who act under the tona fide belief that they have. Ib. § 579. Conceding that the agreement to indemnify McCall against the damages which the plaintiffs in the suit might recover against him, was assisting him in his defence, still, if the persons rendering the aid acted under the honest belief, that they were interested in the result of the suit, and not for the purpose of fomenting litigation, it would not have been maintenance. Findon v. Parker, 11 Mees. & W. 675; Story on Con. § 579. The covenant does not upon its face show the character of McCall’s possession, and non constat that the defendants in error, in assisting him, may not have been sustaining their own title. In assuming that both the intention and the act, which are necessary to constitute maintenance, were conclusively established by the covenant, the court erred; and as it is impossible to say,[from the record, on which ground the jury determined against the validity of the contract, and as the facts which went to its validity were alone for them to determine, it follows, that the error of the court may have prejudiced the plaintiff.
The judgment must be reversed, and the cause remanded.