Williams v. Fowle

Devens, J. 1. It is objected that the action cannot be maintained by Bridget and Andrew Williams, and this upon the ground that, Andrew having become insolvent, all his legal or beneficial interest in the contract vested in his assignee. That interest was thereafter sold to George H. Remele, acting on behalf of Catherine P. Ireland, who had become entitled by purchase to the mortgage, which the defendants had agreed to pay. As an action may be brought in the name of the insolvent for the benefit of one who has purchased a chose in action from the assignee in insolvency, there can be no reason why the name of such insolvent should not be joined with that of the party to whom jointly with him the promise of the defendants was originally made. Drury v. Vannevar, 5 Cush. 442. Stone v. Hubbard, 7 Cush. 595. Mayhew v. Pentecost, 129 Mass. 332. 2. The defendants, having as grantees of a certain piece of real estate agreed to assume and pay a certain mortgage, if liable at all, were liable for the amount unpaid on the mortgage, and •not merely to nominal damages, even if the mortgage were still unpaid when action was brought by the plaintiffs. Furnas v. Durgin, 119 Mass. 500. Locke v. Homer, 131 Mass. 93. Reed v. Paul, 131 Mass. 129. 3. It is further contended that the agreement made on behalf of Mrs. Irelarid, under which $50 was paid to Andrew and Bridget Williams and $100 more agreed to be paid them when the debt of the defendants should be collected, or when a settlement should be made with them, was champertous and illegal. There was in fact a bargain by which the suit was to be carried on by Remele, acting on behalf of Mrs. Ireland, and at his or her expense. Where a party has no interest, legal or equitable, and no claim or expectancy, remote or contingent, in a suit, an agreement to carry it on at his own expense in consideration of some bargain to have part of the thing in dispute, or some profit out of it, is champertous and illegal. Scott v. Harmon, 109 Mass. 237. Where, however, a party has a remote or contingent interest, or even possibility of interest, in the subject litigated, the agreement is not of that character. Lathrop v. Amherst Bank, 9 Met. 489. Call v. Calef, 13 Met, 362. The party making it [389] is not in such case a champertor, interfering in strifes in which he has no part, and maintaining them only for the profit he may derive from them. The contract made by the defendants was one in which Mrs. Ireland had an interest. The defendants had agreed with the nominal plaintiffs to pay the mortgage which Mrs. Ireland held. Even if she could not bring an action at law directly against them, the nominal plaintiffs were bound to pay the amount of the mortgage to her. It is suggested in Furnas v. Durgin, supra, that perhaps they might be compelled, by a proper proceeding in equity on behalf of parties standing as do the defendants, to pay any sum received by them on such a contract to the holder of the mortgage, in order that the estate of the defendants might be relieved. It was certainly the moral duty of the nominal plaintiffs to pay Mrs. Ireland the sum received from the defendants, and they were under a legal liability to her for an equal amount upon the notes secured by the mortgage which she held against them. In addition, a suit had been brought against the nominal plaintiffs by Mrs. Ireland, in which the defendants were summoned as trustees. In obtaining control of the suit which the nominal, plaintiffs might bring against the defendants, she was dealing with a litigated suit in the successful termination of which she was clearly interested. The agreement made was, therefore, not illegal or champertous. Exceptions overruled.