Richardson v. Rowland

40 Conn. 565 | Conn. | 1873

Foster, J.

The only point presented by the finding for our consideration is, whether the plaintiff is entitled, upon the facts found, to recover one-half of the sum of $468.53, the amount received by the defendant as the net avails of his suit against Sturges. The plaintiff claims one-half of this sum under a contract with the defendant by which he was to i’ender him certain services in connection with the suit and receive half the net amount recovered; the defendant resists the demand, claiming that the contract is void for maintenance and champerty.

Maintenance at common law signifies an unlawful talcing in hand or upholding of quarrels, or sides, to the disturbance or hindrance of common right. The maintaining of one side, in consideration of some bargain to have part of the thing in dispute, is called champerty. Champerty therefore is a species of maintenance.

Maintenance was an offence at common law, and divers statutes have been passed in England by Parliament regarding it, commencing' as early as the reign of Edward I. The reasons upon which the ancient doctrine rested in England can now scarcely be said to exist, and the law has, at times, been regarded with disfavor. As long ago as 1791, Mr. Justice Buller, in the case of Masters v. Miller, 4 T. R., 340, speaks of a particular application of the law of maintenance almost in the language of contempt. Our statute against unlawful maintenance, first passed in 1809, forbade certain officers of the law, attorneys and counselors, sheriffs, deputy sheriffs and constables, from buying any bond, bill, promissory writing, book debt, or other chose in action, under certain penalties. As modified in 1848, and as the law now stands in our statutes, if either of the above named officers shall, with intent to make gain by the fees of collection, purchase any chose in action, and commence a suit upon the same, he shall forfeit a sum not exceeding $100.

As the plaintiff is not one of the officers named in our statute, that statute is not interposed by the defendant in the way of a recovery; the common law is the law relied on.

We are not aware of any case where the law of maintenance and champerty has been considered and passed upon by this court. It is alluded to by Church, J., in giving the opinion of the court in the case of Stoddard v. Mix, 14 Conn., 23, 24, and by Ellsworth, J., in Bridgeport Bank v. New York & N. Haven R. R. Co., 30 Conn., 273.

Some of our sister states have adopted the common law on this subject and some have not. Massachusetts and Rhode Island recognize the rule of the common law. Thurston v. Percival, 1 Pick., 415; Lathrop v. Amherst Bank, 9 Met., 489; Martin v. Clark, 8 R. Isl., 389. Among the states which discard the rule, are Vermont, Delaware, Tennessee and Iowa. Danforth v. Streeter, 28 Verm., 490; Bayard v. McLane, 3 Harrington, 139, 209; Therley v. Riggs, 11 Humph., 53; Wright v. Meek, 3 Iowa, 472.

There are such broad distinctions in the state of society between Great Britain and this country, that the reasons which make a law against maintenance and champerty salutary or necessary there, do not exist here; certainly not to the same extent. Mr. Justice Grier, in giving the opinion of the court in Roberts v. Cook, 20 How., 467, says that the ancient English doctrines respecting maintenance or champerty have not found favor in the United States. The enforcement of the law here would not always, perhaps not generally, promote justice. Mr. Chief Justice Parker, in giving the opinion of the court in Thurston v. Percival, 1 Pick., 417, says, “ It sometimes may be useful and convenient, where one has a just demand which he is not able from poverty to enforce, that a more fortunate friend, should assist him, and wait for his compensation until the suit is determined, and be paid out of the fruits of it.”

The contract between these parties, however, was in regard to a suit pending in the state of New York; the property attached was there situate; the services to be performed were to be performed there ; and the money to be recovered, if recovered'at all, was there to be recovered. The contract in short was to be performed in the state of New York. The law of New York therefore must necessarily govern the contract. Commonwealth of Kentucky v. Bassford, 6 Hill, 526. It becomes quite unnecessary to decide what the law of Connecticut, or of other states, may be on the subject of champerty and maintenance.

The law of New York upon this subject is very clearly and explicitly laid down by the Court of Appeals of that state in the case of Stanton v. Sedgwick, 14 N. York, 289. The facts in that case, briefly stated, are these. One Trowbridge undertook, at his own expense, to obtain for the defendant, Stanton, title from the state of New York to a certain lot of laud in the city of Syracuse, in that state, then used and occupied by Stanton for a stone yard. Stanton had made erections on the lot, exceeding the value of $200, by virtue' of which he had acquired a preemption right to purchase it from the state, under a certain legislative act then in force. Stanton agreed to convey to Trowbridge, by a good and sufficient conveyance, in consideration of the above mentioned expenses and trouble, one undivided half of the lot free from incumbrance or lien except for the purchase money; both parties to share mutually the cost, or purchase price to be paid to the state therefor.

Trowbridge performed the contract on his part; he procured a patent to be duly issued to Stanton, and paid to him one half of the purchase money advanced to the state.' Trow-bridge then assigned his interest in the contract to the plaintiff, Sedgwick, and a demand of a conveyance of the one half of the lot was made, which Stanton refused to give, and this action was brought to enforce the contract. The case was tried at a special term, and judgment was given requiring the defendant to convey to the plaintiff the undivided half of the premises. , The defendant excepted, and the judgment was affirmed at the general term, and on appeal that judgment was affirmed by the Court of Appeals.

The doctrine of this case is, that the law of maintenance and champerty is not in force in that state, except as contained in their statutes. The opinion, a very elaborate one, pronounced apparently on very full consideration, was given by Selden, J. No question seems to have been made but that the contract sought to be enforced was within the definition of champerty at common law. The statute of the state then existing, 1856, prohibited any officer or other person from taking any conveyance of lands from any person not in possession, while such lands were the subject of controversy by suit, knowing the pendency of such suit; and also prohibited the buying or selling of any pretended title to lands, unless the grantor and those under whom he claimed should have been in possession for the space of a year before the sale, mortgages of lands by persons not in possession, and conveyances by such persons to those in possession, being excepted. '

There was nothing in the contract which the plaintiff there sought to enforce, in contravention of the provisions of tins statute. The same may be said of the case at bar. Judge Selden says, page 301, “ I still think, in view of the manifest tendency of modern judicial opinion, as well as of the plain scope and intent of our legislation on the subject, that not a vestige of the law of maintenance, including that of champerty, now remains in this state, except what is contained in the revised statutes.” See also Durgin v. Ireland, 14 N. York, 322; Voorhies v. Dorr, 51 Barb., 580.

We see nothing in the character of this contract contrary to the principles of natural justice and equity, and feel no repugnance therefore in allowing the plaintiff to recover. Ho has not, it is true, literally performed the contract, so far as raising the mortgage which rested on the property attached is concerned. But he procured the money with which to raise it; took it twice to Brooklyn, New York, for that purpose ; and was prevented from doing it by the defendant’s attorney, who advised him that it was unnecessary. We think- that was a sufficient performance. We advise the Superior Court to render judgment for the plaintiff.

In this opinion the other judges concurred.