Preston, qui tam, &c. v. Hunt — 7 Wend. 53

Majority

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Preston, qui tam, &c. vs. Hunt.

Headnote

The penalty given by the statute to punish champerty and maintenance, does not attach, for ^purchasing title to land in possession of others than the grantor, unless such possession bo adverse; nor even then, unless knowledge of such adverse holding be brought home to the purchaser.

This was an action of debt, to recover the penalty given by the act to punish champerty mvlmaintenance, fox purchasing a title to land in the possession of the plaintiff and others ; the cause was tried at the Yates circuit, before the Hon. Daniel Moseley, one of the circuit judges.

On the 1st of March, 1825, the defendant purchased a lot of land containing 297 acres, of A. Jenkins and others for the consideration of $1784. The plaintiff and two others persons were, at the time of such purchase, in the actual possession of the premises. They claimed no title to the premises other than what was derived from a possession taken by one Benett, in the spring of 1806, who entered upon the land as a vacant lot, and from whom the possession had been transmitted through several persons to the plaintiff, and the other occupants in possession at the time of the conveyance to the defendant. They denied the title of A. Jenkins and others, and forbade their agent and the defendant to enter on the land for the purpose of making a survey, preparatory to the conveyance to the defendant. When the plaintiff rested, the defendant moved for a nonsuit, because it had not been shewn, 1st. That the occupants of the land at the time of the conveyance to the defendant held adversely ; 2d. That the persons under whom the defendant claimed had not been in the receipt of the rents for one year previous to the conveyance to the defendant ; and 3d. That the defendant, at the time of the purchase, had knowledge of an adverse holding by the plaintiff and the others in possession. The judge refused the nonsuit, and under his charge the jury found a verdict for the plaintiff, for $1486 ; which the defendant moved to set aside.

E. Van Burén, for defendant.

J. A. Spencer, for plaintiff.

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By the Court,

The only question which it seems f0 me necessary to consider, is whether a person buying a title to land not in the actual occupancy of the vendor, is to the penalty in the statute, unless the land be held adversely. The clause in the statute on which the action is founded is as follows: “ That no person shall buy or sell, or by any means procure any pretended right or title, or make or take any promise to any lands, tenements, or hereditaments, unless such person who shall so bargain, sell, covenant, or promise the same, or his ancestors, or those by whom he claims the same, have been in possession of the same, or of the reversion or remainder thereof, or taken the rents and profits thereof, for the space of one whole year next before the said bargain, &c. upon pain, &c.” In all the cases which I have examined upon this statute, two things seem to be necessary to complete the offence, to wit: 1st. That the land shall be held adversely, and 2d. That the party prosecuted shall have knowledge of that fact. Thus, in Teele v. Fonda, 7 Johns R. 251, the court say the evidence is full and complete, that when the defendants purchased the lot, it was claimed and possessed under a title hostile to the Ogden title ; and all this was known to the defendant at the time of his purchase. And the case of Hassenfrats v. Kelly, 13 Johns. R. 466, seems to me decisive of this case. That was an action against the defendant for selling a lot of land; and Spencer, justice, says: “ To produce the consequences of a violation of a penal statute, it ought to appear expressly that there was a person in possession claiming to own the land. In the case of vendor of land, the statute does not make mention of knowledge of an adverse possession, but it does in the case of a purchaser; yet, in the case of the vendor, in the case last referred to, the court held that he would not incur the penalty by selling, unless he knew of the adverse possession.

In this case there was no pretence of an adverse possession. When the agent went to survey the land, a short time before the conveyance was executed, the occupant disclaimed holding under any pretence of title. The intendment of law in such case is, that the possession is in subserviency to the true title. It is immaterial how long the possession may have con-

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tinned; it was not hostile in its inception, nor did it become so at any subsequent period. Of course the defendant could have no knowledge of any adverse holding.

A new trial is granted, costs to abide the event.