Martin v. Veeder

Cole, J. The circuit court dismissed the complaint because the plaintiff did not show a full performance of the contract on his part, as it appeared that he had not paid the purchase money for the land. There would not seem to be room to doubt that the plaintiff was bound to show a substantial compliance with the terms of the contract on his part, in order to entitle himself to a specific performance of it on the part of the defendant. For the covenants contained in the agreement are obviously dependent in such a sense that a performance of them by the defendant depends upon the prior performance by the plaintiff; and therefore, if the contract imposed upon the plaintiff the duty of paying for the entry of the land, he might be required to show a performance, perhaps, in this particular, or excuse his default, before he should have a conveyance of the land. I am not, however, by any means clear that the agreement imposed upon the plaintiff the obligation of paying for the land, although this seems to be the construction placed upon the contract by the plaintiff himself in the complaint. It is true, the language of the contract is not very explicit upon this point, but the most obvious intention of the parties, as 473 gathered from tbe whole instrument, is that no such duty was imposed upon the plaintiff. At the same time the evidence shows most conclusively to my mind, that the plaintiff did not perform the contract in other material respects, as he had undertaken and agreed to perform, and therefore is not entitled to a performance of the contract on the part of the defendant. As I understand the instrument, the defendant undertook and agreed to convey to the plaintiff, by a good and sufficient deed, a one-third part of the premises mentioned in the complaint, as soon as his entry was perfected, solely upon the condition that the plaintiff would on his part render all necessary services in procuring the allowance of the entry and the vesting of the title in the defendant. The plaintiff was a lawyer, of eminence in his profession, and it was evidently the intention of the parties that he should give his personal attention to all litigation and business incident to establishing the rights of the defendant, as a condition to having a conveyance of his share of the land. It is claimed that the contract did not impose upon the plaintiff the duty of attending to the litigation growing out of the defendant’s contested pre-emption right in the circuit and supreme courts, but only the duty of attending to the matter before the state land office. To my mind this interpretation of the contract is clearly inadmissible. The defendant agreed to convey when his entry at the land office should be perfected, and the plaintiff undertook to render all necessary services in perfecting this entry. Whatever litigation might arise in perfecting the title in the defendant, the plaintiff was to attend to personally. The proofs show, beyond all controversy, that he did not do this, but that the defendant, to protect and secure his rights, was compelled to employ other attorneys, at an expense of several thousand dollars, to attend to his suit in the circuit and supreme courts. And this litigation was all necessary to perfect the entry of the defendant; for the law (chap. 1, Laws of 1853) expressly provided, in case of an appeal under that act, that the register should issue no certificate of entry to 474 the successful claimant until tbe decision of tbe court should be made and certified to tbe register. Sec. 1. By tbe agreement, therefore, tbe plaintiff was as much bound to attend to this litigation in tbe courts as be was to attend to tbe contested claim before tbe land officer. Eor tbe defendant’s right to enter tbe land was not perfect until tbe final decision of tbe case in tbe supreme court. It is suggested, however, that tbe plaintiff was not bound to attend to tbe litigation of this claim in tbe courts, because tbe law allowing ajojaeals from tbe decision of tbe register in cases of conflicting pre-emption claims was not in force when tbe contract was made. Therefore, it is said, no such litigation could have been in tbe contemplation of tbe parties. But it is evident tbe parties must be presumed to have entered into tbe contract with a full understanding of tbe power of tbe legislature to make such changes in tbe law in regard to settling conflicting preemption claims to lands granted tbe state, as it might deem necessary. Doubtless tbe legislature might have transferred this whole class of claims to tbe courts, giving tbe register no control over them, except tbe mere ministerial duty of issuing tbe certificate to tbe person who, tbe court should say, was entitled, to it. If tbe legislature bad made this change in tbe law, would it be seriously insisted that tbe plaintiff bad performed bis contract by attending to tbe issuing of tbe certificate by tbe register ? Probably not. And yet there would be tbe same reason for saying that tbe plaintiff bad fully performed bis contract in tbe case supposed, as there is for bolding that be was not bound to attend to tbe litigation of tbe contested pre-emption claim in tbe courts because tbe law granting an appeal in such a case from tbe decision of tbe register was not in force when tbe contract was made. I am constrained to bold, therefore, that it abundantly appears from tbe evidence, that tbe plaintiff failed to perform bis side of tbe contract, and hence cannot insist upon a specific performance of tbe contract on tbe part of 475 the defendant. Mr. Justice DowNER, however, while entertaining some doubts upon this ground, thinks the judgment should be affirmed because the contract was champertous. The common law in regard to champerty, with such qualifications as the modern authorities have established, has been held to be in force in this state. Barker v. Barker, 14 Wis., 131. The reason and policy of the rule of the common law certainly condemn this agreement as being champertous. It is true the matter or thing in dispute was a contested pre-emption right then pending before a state land office ; but an agreement to prosecute this right until it was allowed, and receive a one-third part of the land as a reward for the services, would seem to be a palpable violation of the principles of law in reference to champerty and maintenance. If the reason of the rule is, that persons having no interest in the matter in dispute shall not contract for an interest upon condition of carrying on the suit or controversy, because to do so encourages strife and litigation, then, as already observed, the policy of the law applies as well to a contested pre-emption right as to a strict action at law. And therefore my decided impression is, that this agreement is void for champerty. But I have not examined that question as fully as I should have done were I not entirely clear that the plaintiff has failed to show that he has performed the contract on Ms part so as to entitle himself to a specific performance of it from a court of equity. By the Oourt. — The judgment of the circuit court is affirmed.