20 Johns. 386 | N.Y. Sup. Ct. | 1823
Lead Opinion
It has been insisted, on the argument, that the agreement is not unlawful: 1. Because, it does not appear, that the lands, for which suits were to be instituted, were held adversely. 2. Because, although H. R, Tetter was the heir at law of his father, and the legal owner, the agreement carried into effect an equitable right, on the part of his sister, to have a proportion of the property, and that it was competent for the heir at law to waive his legal right, so far as to admit her to participate in the division of the estate. 3. Because, the defendant, having drawn the agreement, and acted under it, is concluded from making the objection, that it was illegal.
Other objections have been made to the plaintiff’s right to maintain this action, besides the one on which the nonsuit was granted: 1. That the action, being founded on a joint retainer, by Tetter and the plaintiff, the suit ought to have been brought by them jointly* 2.
Champerty and maintenance are distinct offences. Champerty is one species of maintenance; but, the statute, and elementary writers, regard it as a different offence, although subject to some of the same rules. . The first section of the statute, (1 N. R. L. 172. sess. 24. ch. 87.) enacts, “ that no officer, or other person, shall take upon him any business, that is or may be in suit in any Court, for to have part of the thing in plea or demand; and no person, upon any such agreement, shall give up his right to another; and every such convej'ance or agreement shall be void; and every person, who shall maintain any plea or suit, in any Court, for lands, tenements, or other things, for to have part or profit thereof, shall be punished by fine and imprisonment; but this act shall not prohibit any person to have counsel of persons duly licensed for that purpose, or to take counsel of his parents and next friends.” The eighth section of the statute, prohibits the buying or selling any pretended right or title to lands, unless the person selling, or his ancestors, or those by whom he claims the same, have been in possession of the same, or of the reversion or remainder, or taken the rents and profits for one year next before the sale, upon the pain of forfeiting the value of the lands, and subjecting the buyer, knowing the same, to the same forfeiture. The ninth section, -prohibits any person from unlawfully maintaining another, in any matter or cause, in suit or variance, concerning lands, or goods, or debts, &c., upon the pain of forfeiting 250 dollars. • These are all the provisions of the statute, having any relation to the question to be decided; and, it is only necessary to state the different provisions, to perceive the difference in the of-
To take the case out of the operation of the statute, it was contended, on the argument, that the plaintiff’s wife, as the sister of H. R. Teller, and as one of the children of Isaac Teller, had such an equitable interest in the land, as to render it lawful for her husband to make the agreement. It was decided in this Court, in Wickham v. Conklin, (8 Johns. Rep. 227.) that where a party had any interest, legal or equitable, in the land which was the subject of the suit, there was no foundation for the charge of maintenance. In that case, which was a suit for the penalty inflicted by the 9th section of the statute for unlawful maintenance of a suit, Conklin had a resulting trust in the land in controversy, and had, therefore, a right to assist in the prosecution of the suit. Here, the only right which the plaintiff had, grew out of the very agreement prohibited by the statute. His wife had neither a legal nor equitable interest jn the land, of which a Court of law or equity could take notice, or en
It is laid down by Hawkins, (ch. 84. s. 18.) “ that no conveyance, or promise thereof, relating to lands in suit, made by a father to his son, or by any ancestor to his heir apparent, is within this statute, since it only gives them the greater encouragement to do what, by nature, they are bound to do.” Coke, (2 Inst. 563, 564.) in commenting on the statute of 28 Edw. I., and upon the exception,and of allowing counsel to be taken of parents and next friends, says, there is a diversity of signification between taking counsel of serjeants at law, and attorneys, and of the prochem
The defendant is not precluded from making the objection, that the agreement is void. He is chargeable with knowledge of the contents of the agreement; but he is not a party to it, nor a particeps criminis. He took no interest under the agreement, and assumed no responsibility in consequence of it.
It is insisted, that the defendant, having been retained by the plaintiff and Teller, is bound to pay the plaintiff his proportion of the money received. No money was received rader the joint retainer, but it was received under the compromises made by the defendant with the possessors of the land, under authority derived from Teller alone, in virtue of the power he gave to the defendant. It may well be questioned whether the defendant has received any money to which the plaintiff had a legal title, even admitting the agreement to be valid; but it being void, surely the plaintiff has no foundation to stand on. It is a fundamental rule, that all contracts which have for their object any thing repugnant to the general policy of the law, or contrary to the provisions of a statute, are void; for it is a rule as well in law as equity, ex turpi contractu actio non oritur. Thus, in Whitaker v. Cone, (2 Johns. Cases, 58.) notes had been given, as the consideration for the conveyance of Susquehannah lands, under a claim derived from the state of Connecticut, but which lands lay within the state of Pennsylvania ; the sale was held to be illegal, and the consideration void, on the ground, that it was buying and selling a pretended title, and was a species of maintenance. Again; in Belding v. Pitkin, (2 Caines’ Rep. 147.) the plaintiff, as the agent of the defendant’s testator, had sold lands situated as in the last case, and under the same circumstances, upon an agreement that he should have half the proceeds ; and the defendant’s testator had received moneys arising from such sale; it was adjudged, that the contract being illegal, no action was suS“
We have no concern with the policy of the statute, to prevent and punish champerty and maintenance. It is enough for us, that the law forbids these offences; and it may well be doubted, whether the cases to which I have referred, allowing a conveyance pending a suit, from a father to his son and heir, is not an extension of Jhe exception beyond its natural bearing and import.To allow the exception to be extended to collaterals, because, possibly, they may inherit the estate; and to permit it, even to be extended to connexions of such collaterals, having no consanguinity or relationship with the party claiming title, would, in my judgment, amount to a virtual repeal of the act. , Mr. Justice Blackstone, (4 Bl. Com. 134, 135.) speaking of maintenance, says, it is an offence against public justice, as it keeps alive strife and contention, and perverts the remedial process of the law into an engine of oppression. Of champertors he says, “ these pests of civil society, that are perpetually endeavouring to disturb the repose of their neighbours, and officiously interfering in other men’s quarrels, even at the hazard of their own fortunes, were severely ani
Platt, J. concurred,
i
Dissenting Opinion
(dissenting) At the trial, the plaintiff was nonsuited, on the ground that the agreement was unlawful and void, and could not be the foundation of an action. On the argument of this case, other grounds were taken, to show that the plaintiff could not recover ; but I waive the consideration of them at present, and proceed to examine the question, whether this agreement was unlawful, as being against the provisions of the statute to prevent and punish champerty and maintenance.
This question arises under the first section of the act, (1 N. R. L. 172.) which declares, “ that no officer, or other person, shall take upon him any business that is or may be in suit in any Court, for to have part of the thing in plea or demand: and no person upon such agreement shall give up his right to another. And every such conveyance and agreement shall be void.” The ninth section declares, “ that no person shall unlawfully maintain, or cause or procure any unlawful maintenance, in any matter or cause whatsoever, in suit or variance, concerning any lands, tenements, hereditaments, or any goods, chattels, debts, damages or offences, in any court in this state, or before any person who shall have authority to hear or determine concerning the same.” These provisions contain the substance of several English statutes, which have received a judicial expositipn in the Courts of that country, in various adjudged cases. The de-= cisions under those statutes must be considered as forming a part of the common law, and, consequently, will serve as landmarks to guide us in the application of the statute to the case under consideration. It is true, our act has one provision, more explicit than is found in the English statutes ; it is declared, “ that every such conveyance and agreement shall he voidbut these expressions cannot vary the rule of construction, because the words declare no more, than the law
The first section relates to champerty; the ninth, te maintenance. The latter is defined to be “ an officious inter-meddling in a suit, that no way belongs to one, or in which the party has no interest, by maintaining or assisting either party with money, or otherwise, to prosecute or defend it the former is “ a species of maintenance, being a bargain with a plaintiff or defendant to divide the land, or other matter sued for, between them, if they prevail at law.” (4 Black. 134. 2 Chitty’s Crim. Law, 115.) Both were of-fences at the common law, and punishable by fine and imprisonment. In giving a construction, we must consider the nature and extent of the evil intended to be remedied. In the definition of maintenance, it will be seen, that persons, who have any interest, are not included; so, also, if the agreement is founded on the ties of blood, it has been uniformly held, not to come within the purview of the statute. (8 Johns. Rep. 484. Hawk. 131. ch. 84.) Without resorting to cases, it would seem to be most unreasonable to prohibit kindred from assisting their near relations, or to subject an individual to punishment, who aided in the recovery of property, in which he had an interest, however contingent.
The statutes concerning champerty and maintenance, were intended to operate against strangers. The evil intended to be prevented, is well described in 1 Leon. 167. : “ When many thought they had title or right unto any land, they, for the furtherance of their pretended right, conveyed their interest, in some part thereof, to great persons, and with their countenance did oppress the possessors.” It-is with reference to such cases, that Blackstone speaks of the actors as “ pests of civil society, that are perpetually endeavouring to disturb the repose of their neighbours, and officiously interfering in other men’s quarrels, even at the hazard of their own fortunes.” These statutes must be construed so as to effect the intention of the legislature
The early cases seem to have followed a literal construction, which the good sense of later times has exploded. In Master v. Miller, (4 Term Rep. 340.) Justice Butter observes, " at one time, not only he who laid out money to assist another in his cause, but he that, by his friendship or interest, saved him an expense, which he would otherwise be put to, was held guilty of maintenance; nay, if he officiously gave evidence, it was maintenance 3 so that he must have had a subpoena, or suppress the truth. That such doctrine., repugnant to every honest feeling of the human heart, should be soon laid aside, must be expected. Accordingly, a variety of exceptions were soon made, and, amongst others, it was held, that if a person has any interest in the thing in dispute, though on contingency only, he may lawfully maintain an action on it.” (2 Roll. Ab. 115. Bro. tit. Maintenance, 7. 14. 17.)
In 1 Hawk. B. 1. ch. 84. sec. 19., it is laid down, that a conveyance by a father to his son, or by an ancestor to his heir apparent, is not within the statute, since it only gives them the greater encouragement to do what by nature they are bound to do. (1 Bac. Ab. 576.) So, also, the husband may maintain where the land may descend to his wife. (15 Vin. Ab. 162. H. 3. 1 Hawk. B. 1. ch. 83. sec. 20.) A brother of the half blood shall not maintain, because there is not an immediate possibility to inherit between them; but a brother of the whole blood is -not within the statute, for he may inherit. (15 Vin. Ab. 162. H. 9.) On the same ground, to wit, the possibility of inheriting, it is lawful for the husband of a cousin, who may be heir, to maintain in any action j but, if the feme dies without issue, it is otherwise. (Bro. Maintenance, pl. 18. 15 Vin. Ab. 168. O.9.) On the ground of interest, it is not necessary that a party should have a certain legal or equitable interest; it is enough, if it be shown, that there is a bare contingency of such an interest, •in the lands in question, which, possibly, may never come
The offence of champerty consists in the unlawful maintenance of a suit, in consideration of a bargain to have part of the thing in dispute. This, according to the doctrine before advanced, must evidently mean the purchase of a part to which a party had not even a contingent right; but here no such purchase was made; the plaintiff had a contingent, or possible interest, in the whole of the lands, depending on the happening of subsequent events, which might, or might not, vest the right. The plaintiff has, then, done no more than to reduce this contingent interest to certainty, by accepting a covenant to convey one fourth, in case of a recovery, which may not have been more than the value of his contingent interest. Be that as it may, he was a purchaser having an interest, and that distinguishes it from a purchase which the statute renders unlawful.
The preceding view of this case seems to dispense with the inquiry, whether there is proof that the lands were held adversely. I will content myself by observing, that if an adverse possession can be presumed, the facts may warrant that presumption ; but this is not sufficient. The party who insists that a deed is void, must make out the fact of ad
The plaintiff claims the one fourth of this money, under the agreement, as the property recovered. I am satisfied the claim is well founded. By a just construction of the instrument, one fourth part of this money was had and received by the defendant to the plaintiff’s use; and it being no where alleged that any part has been paid over to Tel
Motion denied.