Thompson v. Marshall

36 Ala. 504 | Ala. | 1860

A. J. WALKER, C. J.

We need not inquire, whether, for the want of the attestation of one witness, or an acknowledgment in pursuance of the statute, the conveyance to the appellee is ineffectual to pass the title to the real estate described in it. — Code, §§ 1266-1267. It embraces personalty as well as realty, and its invalidity as to the realty would not impair the right to a reformation of the contract sought by the bill.

[2.] The complainant has not been guilty of such laches as to deprive him of the right to the relief prayed.

[3.] The mistake alleged in the bill is proved by the evidence. It is contended, however, that there can be no reformation of the contract, because it involves the offense of champerty, or maintenance. The features of the contract referred to, as supporting the charge of maintenance, are, that the complainant became a purchaser’, pending a suit to rescind the conveyance under which his vendor held; that he takes a transfer, not only of the property in litigation, but also of such “rents, hires and damages,” as might accrue in the suit for rescission; and that, as shown by parol evidence, he assumed a liability for his vendor’s share of the costs and expenses of the suit.

The complainant in this case was a party to the suit for rescission. After the purchase of his vendor, and before the commencement of the suit to rescind the sale to his vendor, he bought the crop of cotton upon the land sold to his vendor; and one of the objects of the suit for rescission was, to charge the complainant in this case, Marshall, on account of the crop of cotton so purchased by him. He was charged in the bill to have taken the cotton with notice of the fraud, upon which the prayer for relief was predicated. From these facts it results, that Marshal], the complainant in this case, had an interest in the suit for a rescission, in common with his co-defendant, from whom he purchased pending the suit against them. He and his vendor had a community of interest in resisting the rescission sought, because fraud in-the transfer to the latter, and a consequent right of rescission, was alleged as the common cause of relief against both. Because the complainant in this case was thus interested with his vendor in the suit pending at the time of his purchase, he is not chargeable with maintenance.

Maintenance, of which champerty is a species, is said to signify “ an unlawful taking in hand or upholding of quarrels >r sides, to the disturbance or hinder anee of common right.” 1 Hawkins’ PI. 454. It is also said to be “an officious intermeddling in a suit that in no way belongs to one, by maintaining or assisting either party, with money or otherwise, to prosecute or defend itS — 4 Bla. Com. 134. The gist of the offense is, that the intermeddling is unlawful; that it is officious, and in a suit which no way belongs to the inter-meddler. This essential element of the offense is absent here. The suit for rescission was as well the suit of the complainant as of his vendor. The most efficient mode of protecting himself against a decree was to contest the point upon which the liability of his co-defendant, from whom he purchased, depended. The intermeddling of one with a suit, in reference to which he occupies such a relation, has never been considered officious, or unlawful ; but has always, upon the plainest dictates of reason and justice, been sanctioned. Hawkins, in treating of the question, how far acts of maintenance are justifiable in respect of an interest in the thing in variance, lays down the doctrine, that those who have either a certain or a contingent interest in land, or who have a common interest with the party in the same thing, as in a way, church-yard, or common, may intermeddle in suits pertaining to such matters.- — 1 Hawkins’ PI. 456, 457, 458. Upon the same principle, which underlies the examples put by Hawkins, it has been decided, that a second mortgagee may lawfully purchase the interest of a prior mortgagee, which was in litigation, and contract to indemnify the latter against past and future costs, where the claim asserted against the prior mortgagee might affect the second mortgagee. — Hunter v. Daniel, 4 Hare, 420. And it has been decided, that where several proprietors of land in a parish have a common interest in resisting a claim of tithes, asserted against tenants of the respective lands, one of them would not perpetrate the crime of maintenance, by assisting in suits brought to enforce the claim as to other lands than his in the parish. Findon v. Parker, 11 M. & W. 675. And in Massachusetts it has been-held, that where two persons had distinct rights to the exclusive enjoyment of a patent at different places, near each other, a contract by one to prosecute a suit for the infringement of the other’s exclusive fight to the enjoyment of the patent in the particular locality, in consideration of one-half the recovery, was not champertous. — Call v. Calff, 13 Metc. 362. This last decision is put upon the ground, that as the two places were near each other, the unauthorized use of the patent in one place would diminish the value and profits of the patent in the other; and that, therefore, each had an interest in preventing the infringement of the other’s right.. The elementary writers upon equity also assert the principle, that the doctrine of champerty and maintenance can not be applied to one having an interest in the subject in. dispute. — 2 Story’s Eq. Ju. 1048 a; 2 Spence’s Eq. Jur. 872. And this court itself, in McCall v. Capehart & Harbin, (20 Ala. 521,) has recognized and acted upon the same principle.

[4.] It is contended, that the property conveyed by the deed sought to be reformed was adversely held at the time of the conveyance. If that be so, it makes no difference in this case; for the deed would, nevertheless, be valid inter paries. — Harvey v. Carlisle, 23 Ala. 635; Abernathy v. Boazman, 24 Ala. 189.

[5.] If the complainant’s promise to discharge the duties imposed upon him by the contract specified in the instrument to be reformed is within the statute of frauds, it would not, of itself, be a sufficient reason for refusing to reform the instrument. The instrument itself is in waiting. If the complainant had refused to perform the contract on his part, there might be some reason for withholding the desired decree of reformation. But no reason for refusing the decree exists, when the complainant does not seem to have omitted the performance of any duty imposed upon him by the contract.

[6.] We do not concur with the counsel for the appellant in the position, that the instrument described in the bill w'as incomplete until it was executed by ihe complainant. It was binding upon the defendants as soon-as it wars delivered.

The decree of the chancellor is affirmed.