Prosky v. Clark

By the Court, Norcross, C. J.: This is an appeal from an order granting a motion for a nonsuit. The action was brought by the appellants, as plaintiffs, against the above-named respondents to recover posses [445] sion of an undivided one-fourth interest in and to certain mining claims situated in Ramsey District, Lyon County, under and by virtue of a certain written contract alleged to have been entered into between the appellant George Hafer and certain of the above-named respondents. The motion for nonsuit was granted upon the sole ground of an alleged cham-pertous contract entered into between the appellants prior to the commencement of the action under the provisions of which the said appellant Winfield Scott Prosky was granted a one-half interest of the property rights of the said appellant George Hafer in the property in controversy. In the view we take of this case, it is unnecessary to determine the question whether the agreement entered into between appellants Prosky and Hafer was in fact champertous, nor to determine the extent to which the doctrine of champerty prevails in this state. The case of Gruber v. Baker, 20 Nev. 453, 9 L. R. A. 302, so much relied on by counsel for respondent, presented a somewhat different legal proposition than that involved in this case; besides, the point, that we deem controlling here does not seem to have been presented in that case at all. Rights of action based on fraud, like that assigned by Pollard in the Gruber case, are held by the courts to be not assignable, but are personal to the one defrauded. See authorities cited and quoted from in the opinion of Murphy, J., in Gruber v. Baker, supra, 20 Nev. 469, 470, 9 L. R. A. 302; and see, also, the following authorities: Bigelow on Fraud, pp. 346-350; Brock v. Rogers, 184 Mass. 545, 69 N. E. 334; Simar v. Canaday, 53 N. Y. 298, 13 Am. Rep. 523; Shaw v. Gilbert, 111 Wis. 165, 195, 86 N. W. 188; Lame v. Frawley, 102 Wis. 373, 78 N. W. 593; Norton v. Tuttle, 60 Ill. 130; 20 Cyc. 82. In this case the contract entered into between Hafer and certain of the defendants, and which forms the basis of this action, was not itself tainted with fraud. He could make a valid assignment of all or a portion of his interest, and such assignment might or might not be of a champertous character.. No matter what the circumstances of the assignment of the right of action growing out of the fraud may be, it is held to be against public policy, and by some authorities is said to savor of the character of maintenance. This rule is applied [446] even in jurisdictions which do not recognize the common-law doctrine of champerty and maintenance growing out of the old English statutes. The reason for the enactment of the English statutes of champerty and maintenance having very largely ceased to exist, the extent to which the doctrine is applied varies greatly in different states. Some states, for example California, have refused to recognize it a.t all. Others, like New York, have enacted statutes which have either abolished the old rule or greatly limited its application. The doctrine, however, is in force to a' greater or less extent in the majority of jurisdictions. The great weight of authority is to the effect, however, that the rule rendering contracts void for champerty, cannot be invoked except between the parties to the champertous agreement in cases where such contract is sought to be enforced. (Burnes v. Scott, 117 U. S. 582, 6 Sup. Ct. 865, 29 L. Ed. 991; Courtright v. Burnes, 13 Fed. 317, and note; Gage v. Du Puy, 137 Ill. 652, 24 N. E. 541, 26 N. E. 386; Torrence v. Shedd, 112 Ill. 466; Henderson v. Kibbie, 211 Ill. 556, 564, 71 N. E. 1091; Vimont v. C. & N. Ry. Co., 69 Iowa, 296, 22 N. W. 906, 28 N. W. 806; Ellis v. Smith, 112 Ga. 480, 37 S. E. 739; Ry. Co. v. Smith, 60 Ark. 221, 29 S. W. 752; Woods v. Walsh, 7 N. D. 376, 75 N. W. 767; Davis v. Settle, 43 W. Va. 17, 26 S. E. 557; Isherwood v. Jenkins L. Co., 87 Minn. 388, 92 N. W. 230; Pennsylvania Co. v. Lombardo, 49 Ohio St. 1, 29 N. E. 573, 14 L. R. A. 785, and note; Croco v. Oregon Short Line R. R. Co., 18 Utah, 311, 54 Pac. 985, 44 L. R. A. 285; Euneau v. Rieger, 105 Mo. 659, 16 S. W. 854; Hilton v. Woods, L. R. 4 Eq. Cas. 432; Elborough v. Ayres, L. R. 10 Eq. Cas. 367; 6 Cyc. 880; 19 Cent. L. J. 402; 5 Am. & Eng. Ency. Law, 2d ed. 832.) If the contract between Prosky and Hafer was unexecuted and was in fact champertous, in a suit by Prosky against Hafer to enforce the contract, the latter might set up the defense that the contract was void for champerty. Such, however, is not this case. There is no controversy between the plaintiffs, and whether the suit is conducted in the name of Hafer alone or in his name and that of his grantee or assigaee is of no consequence to defendants. (Gage v. Du Puy, supra.) Upon the other hand, conceding, for the purposes of this case, [447] that the contract between Hafer and Prosky was void for champerty, only the alleged right of action of Prosky would be affected. All the right of action was held either by Hafer alone, or by Hafer and Prosky jointly. In either event, a motion for a nonsuit could not be supported upon the theory that the conveyance or assigment from Hafer to Prosky was void for champerty. The judgment and the order granting the motion for a non-suit are reversed, and the cause remanded, with directions to the trial court to deny the motion for nonsuit and for further proceedings.