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It is the settled doctrine in England, and in New-York, and probably in most of the other states, that the purchase of land, pending a suit concerning it, is champerty; and the purchase is void, if made with a knowledge of the suit, and not in consummation of a previous bargain."
272. Lessee of Hall v. Ashley, 9 Ohio Rep. 96. Willis v. Watson, 4 Scammon's Rep. 64. Willard v. Twitchell, 1 N. H. Rep. 777. The act of Tennessee of 1805, allowed the person having right or title, to convey lands held adversely at the time, but the act of 1821, c. 66, re-enacted the champerty statute of 32 Hen. VIII., so far as to declare all such conveyances void. Whiteside v. Martin, 7 Yerger, 384. It was held, in Kentucky, in M'Connell v. Brown, 5 Mon. 478. S. C. 4, J. J. Marsh. 112, that the lands of a defendant were not liable to execution, under the act of 1798, whilst in the adverse possession of another. Then came the act of 1828, and afterwards the case of Frizzle v. Veach, 1 Dana's Ken. Rep. 211, in which it was held, that, under the last act, the lands of the defendant, though in the adverse possession of another, were subject to levy and sale on execution, and that the champerty doctrine, and c hamperty act of 1824 did not apply. The Kentucky act of 1824, against maintenance and champerty, (and the latter is held to be the most odious species of maintenance, and void at common law,) declared that all contracts to undertake to carry on any suit, or to recover any right or title to land held adversely, in consideration of having part or profit out of the thing in contest, was unlawful, and the parties thereto forfeited all claim and right to the land, so far as to protect the occupant. Smith v. Paxton, 4 Dana's Ken. Rep. 393, 394. A conveyance of land by one not in possession, and held adversely at the time, is void by the act of 1824 against champerty. Baley v. Deakins, 5 B. Monroe, 141. The statute against buying and selling pretended titles, does not prohibit the sale and purchase of equitable titles. It does not apply to trust estates. It means legal, and not equitable titles. Lord Eldon, in Wood v. Griffith, 1 Swanst. Rep. 55, 56. Allen v. Smith, 1 Leigh's Virg. Rep. 231. Baker v. Whiting, 3 Sumner, 476.
M. 8 Edw. IV., 13. 6. 50 Ass. pl. 2. Fitz. tit. Champerty, pl. 15. Mowse v. Weaver, Moore, 655. Hawk. P. C. b. 1, c. 84, tit. Champerty. 2 Co. Inst. 563, 564. Jackson v. Ketchum, 8 Johns. Rep. 479. Louisiana Code, art. 2428. In Sims v. Cross, 10 Yerger, 460, it was held, that the champerty act of that state (and the same rule of construction applies to the same statute provision elsewhere) did not apply to a conveyance in fulfilment of a bona fide contract made prior to any adverse possession. Mr. Dane says, there is no statute on the subject in Massachusetts, but that champerty is an offence in that state at common law. Dane's Abr. vol. vi. 741, sec. 41 The old common law offence of champerty is said never existed in Delaware. See 3 Harrington's Rep. 139, Bayard v. M'Lane, where the doctrine of
The statutes of Westm. 1, c. 25, Westm. 2, c. 49, and particularly the statute of 28 Edw. I., c. 11, established
champerty and maintenance is laboriously and learnedly discussed. But in Ohio, though there be no statute against champerty or maintenance, they are held to be offences at common law, and the contracts void. Weakly v. Hall, 13 Ohio Rep. 167. The old cases on maintenance, said Lord Ch. B. Abinger, are exploded. Parties may lawfully enter into an agreement to maintain and defend each other, in a matter in which they believe their interests to be identical. Maintenance now means where a man improperly, and for the purpose of stirring up litigation and strife, encourages others either to bring actions or to make defences, which they have no right to make. Findon v. Parker, 11 Meeson & Welsby, 679. 682. If a person has an equitable interest in the title in dispute as where the second mortgagee brings in the first mortgage pending the suit, it is not champerty in the modern mitigated sense of it. Hunter v. Daniell, 2 N. Y. Legal Observer, 295. Though exceptions to the earlier doctrine against champerty have greatly multiplied, and the severity of the old rule liberally considered and mitigated, yet it is still an offence suspiciously to intermeddle with another's litigation without any personal interest or affinity to the parties. Lathrop v. Amherst Bank, 9 Metcalf, 489. Purchasing an interest in the thing in dispute, with the object of maintaining and taking part in the litigation, is still champerty, and an offence. Tindall, Ch. J., in Stanley v. Jones, 7 Bingham, 369. Persons having any legal or equitable interest in the matter in dispute, or standing in the relationship of father and son, ancestor and heir apparent, husband and wife, and brothers, are exceptions to the law of maintenance, and may maintain each other's suits. So, persons having a common interest in the same thing by the same title, may unite for their common defence of it, and agree to pay ratably the costs of suit. The ancient English statutes under Edw. I., reached aitorneys as well as others. They reached equally officers and individuals; nulle ministre de roi, ne nul autre, were permitted to take upon him any business in suit in any court, for to have part of the thing in plea or demand. Every agreement relating thereto was declared void. The statute in Tennessee of 1821, c. 66, is to the same effect. Weedon v. Wallace, 1 Meigs, 286. Lord Loughborough considered the offence of maintenance as malum in se, and all agreements tainted with it, even as between attorney and client, are void in equity as well as at common law. They cannot stipulate beyond just professional allowances. Kenney v. Browne, 3 Ridgw. P. C. 462. Wallis v. Duke of Portland, 3 Vesey, 494. Powell v. Knowler, 2 Atk. 224. Stevens v. Bagwell, 15 Vesey, 139. Wood v. Downes, 18 ibid 120. Arden v. Patterson, 5 Johns. Ch. Rep. 48, 49. 1 Greenleaf, 292. Key v. Vathier, 1 Hammond's Ohio Rep. 132. The courts of equity, upon general principles of policy, will not permit an attorney to accept any thing from his client, pending the suit, except his demand. A solicitor or counsellor cannot contract with his client for a part of the matter in litigation as a com
that doctrine, which became incorporated into the common law. The substance of those statutes was made part of the statute law of New-York in 1788; and, by the New-York Revised Statutes," to take a conveyance of land, or of any interest therein, from a person not in possession, while the land is the subject of controversy by suit, and with knowledge of the suit, and that the gran
tor was not in possession, is declared to be a mis*450 demeanor. The same principle that would render the purchase of a pretended title void, would apply, with much greater force, to a purchase while the title to the land was in actual litigation."
III. Of the due execution of a deed.
A deed is a writing scaled and delivered, and to be
pensation for his services.
Wallis v. Loubat, 2 Denio, 607. There would be no bounds, said Lord Thurlow, (Welles v. Middleton, I Cox, 125,) to the crushing influence of his power, if it was not so. Newman v. Paine, 3 Vesey, 203. Rose v. Mynett, 7 Yerger, 30 S. P. Merritt v. Lambert, 10 Paige, 352. The case of Berrien v. McLane, 1 Hoffman's Ch. Rep. 421, contains a strong declaration that every agreement made, pending a litigation, to pay counsel or the attorney a part of the property to be recovered, is absolutely void. Not only every contract, but the actual transfer of part of the property in litigation is illegal, on the ground of the relation of the parties and of the doctrine of champerty. Numerous authorities are cited, but sufficient are already mentioned in the preceding part of this note. But it is not maintenance for a person to assign his interest in a debt, pending a suit for its recovery; but if it be purchased to answer a private end, it is maintenance; as where a party agrees to give a stranger the benefit of a suit, on condition that he prosecute it. 2 Roll. Abr. 113. Harrington v. Long, 2 Mylne & Keene, 590. If the purchaser gives an indemnity against all costs that have or may be incurred by the seller, in the prosecution of the suit, that act amounts to maintenance. Ibid.
Vol. ii. 691. sec. 5.
b The statute law of New-York is understood to confine unlawful maintenance to the two cases of buying and selling pretended titles to land, and falsely moving and maintaining suits. Mott v. Small, 20 Wendell, 212. S. C. 22 Wendell, 403. And by reason of an alteration of the old statute of champerty, by the New-York Revised Statutes, vol. ii. 691, sec. 6, the taking of a conveyance from a party in possession of land, the subject of contro. versy by suit in court, is no longer forbidden. Webb v. Bindon, 21 Wendell, 98. In other respects the old law remains unaltered.
duly executed must be written on paper or parch
(I.) The deed must be in writing, and signed and sealed. The law requires more form and solemnity in the conveyance of land, than in that of chattels. This arises from the greater dignity of the freehold in the eye of the ancient law, and from the light and transitory nature of personal property, which enters much more into commerce, and requires the utmost facility in its incescant circulation. In the early periods of English history, the conveyance of land was usually without writing, but it was accompanied with overt acts, equivalent, in point of formality and certainty, to deeds. As knowledge increased, conveyance by writing became more prevalent ; and, finally, by the statute of frauds and perjuries, of 29 Charles II., ch. 3, sec. 1, 2, all estates and interests in lands, (except leases not exceeding three years,) created, granted, or assigned, by livery and seisin only, or by parol, and not in writing, and signed by the party, were declared to have no greater force or effect than estates at will only. And by the 4th section, no person could be charged upon any "contract or sale of lands, or any interest in or concerning the same," unless the agreement or some memorandum or note thereof, was in writing, and signed by the party to be charged therewith, or some other person by him lawfully authorized. This statute provision has been either expressly adopted, or assumed as law, throughout the United States. In New-York, it has been enacted, in every successive re
Co. Litt. 35, b.
The Civil Code of Louisiana, art. 2415, without adopting in terms the provision in the statute of frauds, declares generally, that all verbal sales of immovable property, or slaves, shall be void. The Tennessee statute omits the words in the English statute of frauds, or any interest in or concerning them.
vision of the statutes; and in the last revision it is made to apply, not only to every estate and interest in lands, but to every trust or power concerning the same; and the exception as to leases is confined to leases for a term not exceeding one year. But the provision does not apply to trusts by implication, or operation of law." Nor is a parol promise to pay for the improvements made upon land within the statute of frauds. They
are not an interest in land, but only another name *451 *for work and labour bestowed upon it. There
is some difficulty in deducing, with precision, from the conflict of cases, the true test of what is, and what is not “a contract or sale of lands, or any interest in or concerning them," within the true construction of the 4th section of the statute of frauds. Mr. Justice Littledale, in Evans v. Roberts, was of opinion that the annual produce of land which was proceeding to a state of maturity, and which when taken at maturity would be severed from the ground, and would become moveable goods, was not an interest in land within that section of the
New-York Revised Statutes, vol. ii. 134. sec. 6, 7, 8. Ibid. 137, sec. 2. The words of the New-York Revised Statutes are, that "no estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power, over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful assent, thereunto authorized by writing." So, again, "every contract for the sale of any lands, or any interest in lands, shall be void, unless the contract, or some note or memorandum thereof expressing the consideration, be in writing, and subscribed by whom the sale is to be made, or by his agent lawfully authorized." But in the case of a parol contract for the sale of lands, if afterwards carried into effect by a conveyance, the deed will relate back to the date of the contract and overreach an intermediate sale to a stranger, unless he was a bona fide purchaser without notice and with a deed duly recorded. Clavy v. Marshall, 5 B. Munroe, 266.
Frear v. Hardenbergh, 5 Johns. Rep. 272. Lower v. Winter, 7 Cowen's Rep. 263.
5 Barnw. & Cress. 820.