Price v. Carney

BEIOKELL, O. J. There are numerous objections to the admissibility of evidence, not considered by the chancellor, and a consideration of which was unnecessarj^ in the view he felt constrained to take of the case. We do not find it necessary now to make them matter of special consideration, for the material facts, upon which the rights of the parties depend, are few, and are shown either by evidence which is uncontro-verted, or by evidence free from all just objection. The primary question is, whether the contract of April 25, 1879, is tainted with champerty. When fairly analyzed, the objects and purposes of the contract are not matter of doubt, .or uncertainty. The first was the adjustment and quieting of litigation between the parties, the subject of several suits, in which the parties stood in the several relations of plaintiffs and defendants. The second was the payment to their respective attorneys of compensation earned in the prosecution or defense of the suits, and in the prosecution or defense of the indictments against the Hadleys and others, all growing out of the same unfortunate occurrence. The third was obtaining from the sheriffs of Baldwin and Escambia counties the moneys remaining in their hands, derived from the sales of personal property levied upon by the attachments. The fourth was the application of these moneys, when received, in the order, and for the purposes expressed in the contract. The legal effect and operation of the contract was a transfer to Price of the beneficial interest in the judgments in favor of John B. and Wiley Bryars, respectively, charged with the trust and duty of collecting the moneys in the hands of the sheriffs, and applying them, when collected, to the uses and purposes expressed in the contract, whereby the litigation would be finally quieted, and the attorneys of the parties compensated for the services they had rendered. The contract was executed by the rendition of judgment, and the dismissal of suits, in accordance with its terms. It is very certain that it was entered into and executed [553] by all the parties intelligently, in good faith, and in the absence of all fraud, misrepresentation, or undue influence. And, so far as is shown by the evidence, the compensation secured to the attorneys for the services which they had rendered, is barely just and adequate. Champerty, as it may be defined in view of our past decisions, '‘is the unlawful maintenance of a suit in consideration of some bargain to have a part of the thing in dispute, or some profit out of it; and covers all transactions and contracts, whether by counsel or others, to have the whole or part of the thing or damages recovered.”—Ware v. Russell, 70 Ala. 174. It is impossible to draw this contract within the influence of this definition, and it is equally impossible to impute to it the corrupting tendencies which vitiate champertous agreements. The quieting of litigation was the primary, controlling purpose of the parties — when the contract was executed, all opportunity and necessity for litigation were removed. Intending the execution of the contract, the parties dealt as if the thing was done, which they intended should be done. There was no more than the transfer and appropriation of judgments, which- they regarded as rendered, to pay the compensation of their attorneys for services already rendered. The amount of the compensation was not dependent upon the commencement, or upon the continuance of litigation, and the profits it should yield. The transfer or assignment to counsel •of specific parts of judgments which have been rendered, or to be rendered, is essentially different from a contract by which they are to have a part of the thing in dispute, for maintaining a suit for its recovery.—Walker v. Cutkbert, 10 Ala. 213. In the language of Lord Abinger, in Prosser v. Edwards, 1 Y. & C. 484, quoted and adopted by this court in Poe v. Davis, 29 Ala. 676 : “All our cases of maintenance and champerty are founded on the principle, that no encouragement shall be given to litigation, by the introduction of parties to enforce those rights, which others are not disposed to enforce.” This sound and conservative doctrine is not contravened by the contract under consideration. As we have said, its controlling purpose was the silence of long protracted, and not the commencement or continuance of, litigation. When executed, further litigation was impossible, unless the sheriffs, holding the moneys they were bound to pay over on the rendition of the judgments, proved refractory or delinquent in the performance of official duty. There is no principle of law inhibiting parties, having a just claim to moneys in the hands of ministerial officers, from assigning or transferring such a claim. Property or rights involved in litigation, or resting wholly in action, are the-subject-matter of assignment, and by fair contract may be acquired by. attorneys, or by others, if it be not of the [554] essence of the contract that suits shall be maintained, and the consideration, a division of the profits.—Ware v. Russell, supra; 2 Story Eq. § 1050. We can not concur in the opinion of the chancellor, that there is a taint of champerty in this contract. We may pass all that is urged as to the obligation of the contract upon the Hadleys. If there was a want of authority in their attorneys to make the contract, it may be, they could have avoided it. Avoidance rested in their discretion ; a discretion they alone could exercise ; if they acquiesce, strangers can not complain. We pass, also, all that is said in reference to the infancy of Wiley Bryars ; since his maturity, he has accepted the benefits, and he can not repudiate the burdens of the contract, if any it imposes] The remaining question is, whether, when the releases were executed, Carney and Taylor had notice of the contract, and of the rights it conferred upon Price and upon Anderson & Bond. The releases were obtained and executed by and through the agency and instrumentality of the attorney of Carney and Taylor, employed to defend the suits pending against them; he was present at their execution, and when the money was paid which forms their consideration. The rule of law is unquestioned, that notice to an attorney, while in the employment and service of his client, of facts connected with the business in-which he is engaged, operates as notice to the client.—Wiley v. Knight, 27 Ala. 336 ; Smyth v. Oliver, 31 Ala. 39. A disputed fact is, whether notice to the attorney is shown, and a careful examination of the evidence satisfies us that the inquiry must be answered affirmatively, and is properly so answered, without impugning the credibility of any witness testifying in reference to it. The release, though inoperative to affect the rights and equities of Price, and of Anderson & Bond, is valid and operative to extinguish the claims of the parties by whom it was executed. A court of equity, having jurisdiction to limit its operation, so as to preserve the rights of all parties, should settle finally the litigation, without remitting them to further controversy in the court of law. The doctrine of the court is, that if it has jurisdiction of the primary purposes and objects of a suit, it will, though it may involve the adjudication of mere legal questions, settle the litigation, without remitting the parties to a court of law, for the adjustment of legal rights, which are consequential or incidental. — 1 Brick. Dig. 639, § 5. The decree of the chancellor must be reversed, and a decree will be here rendered in conformity to this opinion.