Thalimer v. Brinkerhoff

Spencer, Ch„ J. 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. — 392 — That the plaintiff, under the agreement, was entitled to a co^eyanee of a portion of the land recovered, and is not entitled to any portion of the money received on the sale of the lands; and, 3. That the plaintiff ought to have proved notice to the defendant, to retain the proportion of the money he claims. As these objections were not made at the trial, and, as it is possible, had they been made then, that they might have been answered and refuted, by evidence in the power of the plaintiff, I shall dismiss them from any further consideration, on the present motion» 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 of393 fences, and the different punishments denounced against them. The question, then, arises, whether the agreement between the plaintiff and H. R. Teller, is within the prohibitions of the statute ; and whether it falls within the ex-eeptions. The statutes of West. 1. ch. 25. and West. 2. ch. 49. related merely to officers; but the 28 Edw. I. extended to other persons, as well as officers; and our statute is nearly a transcript of the latter, with this addition, that it declares every such agreement and conveyance- to be void. In Jackson v. Ketchum, (8 Johns. Rep. 479.) the question was, whether a purchase of land, during the pendency of a suit for the recovery of the same land, was an infraction of the statute, and the conveyance void. The Court decided, that such a purchase was against the statute $ and that even a bona fide purchase, pending the suit, was within the statute, and would be champerty.. It was urged, on the part of the plaintiff, that the agreement here is not unlawful, because it does not appear, that the lands are held adversely to the title of H. R. Teller. The statute does not make an adverse holding the test of illegality. It forbids any one taking upon himself any business, that is or may be in suit, in any Court, for to have part of the thing in plea or demand; and it prohibits any one from giving up bis right to another, with respect to the thing in plea or demand. But it clearly appears, by the recitals to the agreement, and the whole scope of the contract, that H. R. Teller did not possess, and never had possessed the land referred to in the agreement; but that it was to be recovered, if recovered at all, after severe litigation, and with heavy expense. The agreement recites, that Isaac Teller was possessed of the lands, in his lifetime 5 that H. R. Teller was his heir at law, and laid claim to them, and that suits were to be instituted for the recovery of a part or the whole of them. From all this, the inference is irresistible, that H. R. Teller never wqs in possession of any of these lands, and that his right consisted of a claim to them, founded on his father’s possession; and that they were possessed in such a manner, that he was driven to his remedy by suits at law ; thus refuting and repelling any idea, that they were held in subserviency to his title or claim. The plaintiff, by becoming a party to the — 394 — agreement, is concluded as to the facts recited and admittg£j. an(j ^hg factSj taken collectively, leave no doubt, that H. R. Teller's claim, was founded in a right of action merely. This, then, is a case within the very terms, spirit, and intent, of the first section of the statute. The plaintiff, by stipulating to contribute one half of all the expenses that might accrue, in the prosecution of the suits to be instituted by Teller, for the recovery of the property, if the suits should prove unfortunate, did take upon himself business, that was to be put in suit, for to have part of the thing in plea or demand; and the statute declares every such agreement to be void. If the agreement between the parties did not speak the truth, with respect to Teller's claim to the land, and if it could have been shown, that the possessions of the tenants or holders of the lands, were not adverse to Teller's claim, when the motion for a nonsuit was made, the plaintiff was bound to show the fact, that the possessions were not hostile to that claim. This was not offered to be done. The plaintiff rested his right of recovery on the validity of the agreement; and I, then, thought, and continue to think, that the agreement, unexplained, was susceptible of but one construction; and that it was a case manifestly within the statute. 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 — 395 — force. The descent of property, on the death of its owner, is matter of positive regulation, by the municipal laws of the country where it is situated; and when such laws have ordained, that where a person dies seised of land, it shall descend to his eldest son, in exclusion of his sister, no Court can notice the claim of the sister, to have part of the inheritance, as an equitable claim, against the express and positive provision of the law, which totally excludes her. When, therefore, it is said, in such a case, that the sister has an equitable claim, it is only the undefined and vague opinion of individuals, that the law is wrong, and that the sister ought to be admitted to an equal participation with the brother, of the property of the ancestor. The recital to the agreement admits that H. R. Teller was the heir at law of his father Isaac Teller, and as such laid claim to the property which was the subject of the agreement; and it admits, that the plaintiff though he had married the sister of the heir at law, was not legally entitled to any part of the property, though it states, that in consequence of that marriage, he was justly entitled to a portion of it; but I am clearly of opinion, that the notion of the parties in this respect, does not authorize them to contravene the statute, by stipulating to carry on the suits to be instituted, at their joint expense, and for the ultimate division of the property among them, if the suits terminated successfully. But it has been insisted, that this case comes within the exception of the statute, and the adjudged cases thereon ; the words of the exception are ; “ 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.” 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 — 396 — amyes; that if a serjeant, apprentice, or attorney, take a feoffment hanging the plea, or the like, to maintain the tenant, though it be in lieu of his fee, yet this is champerty, within the purview of the statute; that to take an estate in the land, hanging the writ,, for maintenance, is to become a party; but if a father be impleaded, he may infeoff his son, for his assistance, maintenance, and comfort; for this is nature’s profession, for the son assistere, manutenere, et consolari, et e converso, et sic de similibus; et sic .alia estprofessio legis, et, alia natures; so it is, that the son may, of his own money, and in his own name, give fees to his father’s counsel or attorney, without any expectation of repayment, and so may the father to his son’s counsel.--In like manner, and by the like reason, if the father be demandant in a precipe, he may promise and contract with the son, to assure him the land after the recovery, and it is not champerty within the act; and so of any other ancestor, and his heir apparent. There are prochein amyes not only in blood, but in estate also: and, therefore, as the next of blood is a prochein amy, in respect to the expectancy of descent, (and yet it may be, it shall never descend to him,) so they that have reversions, or remainders expectant, upon estates in tail, life or lives, are prochein amyes, in estate, and are excepted out of this law. With these positions, Fitzherb.N. B., 563. fully agrees. It is, at least, doubtful, whether Lord Coke means to say, that the son and heir may take a conveyance, in consideration of aid and assistance in maintaining the suit; or whether he means only, that the father .is not restrained from making provision for his son and lleir, notwithstanding the pendency of the suit. I understand him to mean the latter. But it is immaterial whether he means the one or the other ; the exception does not extend to such a case as this. If the plaintiff would take the benefit of this exception, in favour of an heir apparent, it' was incumbent on him to show, that his wife was such heir apparent. This does not appear, and is not to be intended. But, again; what puts at rest this pretence is, that the agreement secures nothing to the sister of Teller; it stipulates, that on the recovery of the whole,- or any part of the property, Teller should execute to the plaintiff, his heirs and assigns, conveyances for one fourth part — 397 — of the property recovered; thus entirely excluding his wife, and putting the property, when conveyed, under his own dominion and control. Indeed, it is impossible for me to consider this transaction between the plaintiff and Teller, in any other light, than a mere colourable pretext, to avoid the effect of the statute. 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“ — 398 — tamable. In Hunt v. Knickerbacker, (5 Johns. Rep. 327.) the defendant had received tickets in a lottery instituted in Connecticut, for the purpose of selling them in this state, in contravention of our statute; it was held, that no action could be sustained for the tickets, or the money received. The late Chief Justice Thompson said, that he believed no case could be found where an action has been sustained, which goes in affirmance of an illegal contract, and where its object is to enforce the performance of an engagement prohibited by law; and that "wherever an action has been sustained against a party, to prevent him from retaining the benefit derived from an unlawful act, the action proceeded in disaffirmance of the contract, and instead of endeavouring to enforce it, presumes it to be void. When it is considered that, in this case, the plaintiff’s only title to demand any thing, depends on the validity of the agreement entered into between him and Teller, if that agreement be void, he stands without any pretence of right. I have thought it unnecessary to cite more cases, in support of a doctrine deemed so plain and salutary. 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 — 399 — madverted upon by the common law, and were punished by the forfeiture of a third part of their goods, and perpetual infamy.” The motion to set aside the nonsuit, and for a new trial, must be denied. Platt, J. concurred, i