Jackson ex dem. Bryant v. Ketchum — 8 Johns. 479

Majority

p. 479

Jackson, ex dem. Bryant, against Ketchum and another.

Headnote

A. in an action. of ejectment against B. which, jmW, ism, reí dhTfor worth s,sue doilars, against the defendant, on which a judgment was en ¡■oliowüigf^^ cx/cuted a'quhtl,I'.tIie yousideration ol SOU doilars, to C., who time, of the suit, respeístltíg^the iteras held, that ^e t^ee¿ 0,1,1 cv *-he first section ol the “act to prechamperty" an!i ^essí^'l.'c.'sV.) ]{td,PdariTgAo °Z « ¡t>if made witii a knowledge of the suit, and not tion CofSa"prei I™*champerty, niSde^under tended title.

THIS was an action of ejectment, for land in B-uns- . Mick, in the county of Rensselaer. I he cause was'tried, at the Rensselaer circuit, on the 5th June last, before Mr. Justice Spencer'.

Both parties claimed to hold under Nor is Pearce. A r judgment was recovered . the 29th Feb uarit, 1808, by “L 6 James Cox against Norris Pearce, an absconding debtor, on which a fi. fa. was issued, by virtue of which the sheriff sold the premises in question, and executed a dted for the same to Cox, dated the 22d August, 1808. Cox gave a deed of quitclaim for the same land, to the ° * lessor of the plaintiff, dated 14-th July, 1810. '

The defendant gave in evidence the record of a judgment, in an action of ejectment,- brought on the demise of the defendant against Jacob Whyland and James Cox, junior, for the same premises, and which was tried, at the Rensselaer circuit, in June, 1810, when a ... . was found for the plaintiff, and a judgment entered shereon, in August term, 1810. It was admitted, that that suit involved the same questions as arose in the present, as to the premises, which were worth 2,500 doilars ; and that Bryant, the lessor of the plaintiff, bought the premises of Cox, for 300 dollars, knowing at the c , r ■ . , . .. 6 r time, or the former suit, trial and verdict. It was then objected, on the part of the defendants, that the deed from Cox to the lessor, was inoperative and void; but the judge overruled the objection. The defendants then gave in evidence, an attachment issued the 5th May, 1803, against the. real and personal estate of Pearce, as an absconding debtor, and the proceeding under the act for relief against absconding and absent debtors, and a deed. for the premises in question, from the trustees appointed

p. 480

pursuant to the act, to the defendant Ketchum, dated the oq^ jDecember, 1808.

The defendants also produced evidence, which it is not necessary to detail, to show that the judgment in favour Cox, against Pearce, which had been entered up by virtue of a warrant of attorney, and under which the premises were sold, had been fully satisfied, before the execution and sale under it; and one witness testified, that when the attachment was levied on the property of Pearce, Cox was present, and did not assert any claim under the judgment; but said that “he was sorry for Pearce, and had a mind to save the property for him, and that as he had not discharged the judgments he had obtained against Pearce, on record, he could have the property sold under them and save it for Pearce.” This was, however, contradicted by Cox, who was sworn as a witness at the trial.

The judge charged the jury, that the plaintiff had made out a good paper title, in the first instance ; but if the jury believed that the judgment against Pearce, in favour of Cox, under which the premises had been sold, by the sheriff to Cox, had been satisfied, at the time of the issuing the execution, the defendants would be entitled to a verdict, otherwise they ought to find for the plaintiff. The jury found a verdict for the plaintiff.

A motion was made to set aside the verdict, and for a new trial.

Foot, for the defendants.

The deed from Cox to Bryant was void. It was the sale of the subject matter of the suit, then pending, and while the grantor’s right was in litigation. The English statutes of Westm. 1.c.25. Westm. 2. c. 49. and 28 Edw. I. c. 11. from which our act relative to maintenance has been extracted,were declaratory of the common law. They prohibit all persons from taking, or receiving, by gift or purchase, lands, ike. while a suit

p. 481

is pending.^[7] A lease for life, or years, or a voluntary gift of the subject matter, pending the suit, is as much within the statute, as a purchase for money. And it has been held that the purchase of land, pendente lite, was champerty, and, as such, within the statutes.^[8] The only cases which are considered as exceptions, or not within the statute, are where the conveyance is made bonajide, for a valuable consideration, and without notice, or in pursuance of a previous contract.^[3]

.R~i~'dl, contra,

contended, that the deed was valki at common law, and not within the statute against champ erty. A verdict in ejectnient concludes nothing, except as to the me$ne profits. The first section of our act applies only to the case of a purchase made with a view to defeat the very action pending. Hawkins^[4] speaks of the purchase of doubtful, titles, in order to aid a suit pending relative to such title; and he seems to think it makes no difference whether the party selling is in possession, or not. But the authorities^[5] he cites, do not bear hhn out in that position; for in all of thëlB the party selling was out of possession. The question here is, whether a person legally in possession of land, and having a legal title, cannot sell that 1and~ merely because a person, withut title, has thought proper to bring an action of eject-neat againsthirn. If this deed was valid at common law~ t is not made void by the statute, which merely adds a enalty. The price for which the land sold does not affect the question as to the right to sell. Blackstone,^[6] in treating of maintenance and champerty, takes no notice of this offence.

It is not pretended that Bryant made the purchase, with a view to interfere with the suit then pending between the defendant and Cox. The intent, as to the purchase, was a matter ef fact for the jury to decide.

p. 482

There was, in fact, no intermeddling, on the part of the present iessoV) with that suit. • Must a person, who has an undoubted title to. land, and which has been possessed by him and his ancestors., for a century, be prevented selling it, because soipe person has brought an ejectment against him ? It was once an offence in England,^[7] to sell or purchase a bond or other chose inaction; but now it is the general practice, and has been sanctioned by our courts,

Henry, in reply,

observed,'that the inquiry was not whether the deed from Cox to the lessor was void, under the 8th section of the statute, which prohibits the buying of pretended titles; but whether it was not champerty, and within the first section of the statute. A person who purchases a thing, knowing it to be in suit, does it, either for the purpose of bringing a suit, or defending one, which is the very thing the statute means to prevent, the buying up rights of action, Suppose Cox had been turned out of possession, by the ejectment suit against him, he could not then have sold. Now, he does the same thing circuitously; and for the purpose of becoming a witness in the suit brought by his grantee. The English statute of 28 Edw. I. c. 11. called articuli super chartas, is general, extending to all persons, and to all actions real, personal, and mixed, It has been held that if a tenant, pending a suit, grant rent out of the land, it is champerty.^[8] In equity, the parties cannot alter the state of the matter in controversy, pending the suit. .The position laid down by Hawkins, is established by all the authorities; and the only exception is, where the sale is in pursuance of a previous contract, or to pay an honest debt. Fitzherbert, it is true, says, that a bona pide. purchaser, without notice, is not within the statute. The bona Jides must be decided by a jury, who must be satisfied that there is no champerty, or violation of • the statute.

The principal question is, whethe deed from Cox to Bryant is not void. It was executed bn the 14th July, 1810. It was a quitclaim deed^ and for the consideration of 300 dollars-, and it purported to convey lands -worth 2,500 dollars. A verdict in ejecthierit for the lands in question, had passed against Cox-, at the circuit court, in June-, preceding the sale, and -Bryant, at the time of the purchase, knew of the trial and verdict.

Upon these facts, we consider the deed tó be void, under the act to prevent and punish champerty and maintenance . (Laws, vol. 1. 343.) The first section declares, “ that no officer or other person shall "take Upon him any business that is or may be in shit in any court, for to have part of the thing in plea or dehiahd, and no person upon any such agreement shall give Up his right to another, and every such conveyance or agreement shall be void.” This provision contains the substance of the English statutes of West. 1. c. 25. West. 2. c. 49. and 28 Edw. 1 . c. 11. on this very point. The statute of West. 1. enacted that no officer, See. should maintain pleas, &c. hanging in the king's courts for lands, he. for to have part or profit thereof, by covenant made, &c. The statute of West. 2. extended also to the public officers of justice ; but the 28 Ediv. I. enacted that no officer nor any other, for to have part ofthé thing in plea, should take upon him the business that is in suit, nor upon any such covenant shall give up his right to another, he. Our .statute is nearly verbatim with the last, which also ehxbraced the substance of the other two, and it undoubtedly never meant to weaken the force, or destroy the application of the decisions under those ancient statutes, and which had become incorporated into the body of the common law. Our act has even a more explicit provision than these English statutes, when it declares, “ that every such conveyance and agreement shall be void.” The established doctrine, under these statutes, is,

p. 484

that a purchase, or even a gift, of the land, while a suit is pending concerning it, if it be made with knowledge of the suit, and be not the consummation of a previous bargain, nor founded on the ties of blood, is within the purview of those statutes. (Hawk. b. 1. c. 84. tit. Champerty. 2 Inst. 563, 564.) ¡It is, in the language of our statute, the “ giving up his right to another,” when that right is “in plea or' demand.” In M. 8 Edw. IV. 13. b. it was held by the justices, that a sale or gift of lands-, pending the suit, was within the statutes, for the law prohibited every one from purchasing pending the suit. Even a bona jide purchase pending the suit, was held by all the serjeants, in 50 Ass. pl. 3. to be champerty ; for, by intendment of law, the purchaser must and would aid the suit, to save himself from loss. So strict was the ancient law on this subject. Though this point is sought to be questioned, so far as misdemeanor and punishment are involved, yet the policy of the law may well require that every such conveyance -be adjudged void. In Mowse v. Weaver and Postern, (Moore, 655.) the same doctrine was held, .that the purchase of land, during a Its pendens, was champerty, within the purview of those ancient statutes, though not punishable under the 32Hen. VIII. made against selling pretended titles. There is, indeed, no case that holds such a purchase valid, except in particular instances,- where there is no ground for the inference of champerty; as where a man delivered seisin, after suit brought, in consequence of a previous bargain. (Fitz. tit. Champerty, pl. 15.)

The present case is stronger than any to be met with in the books. It is too gross and palpable a violation of the statute, to uphold a doubt as to the malafdes of the transaction. The purchase and quitclaim, for less than one eighth of the value of the land, and after the knowledge of the verdict in ejectment against Cox, are

p. 485

circumstances that mark this case, and render the conclusion of law upon the facts inevitable.

The verdict must, therefore, be set aside, and a new trial awarded, with costs, to abide the event of the suit.

New trial granted.