Matthews v. Hevner

Mr. Justice Morris delivered the opinion of the Court: The assignments of error are three. It is alleged that the court below erred: 1. In holding that the complainants had no remedy in equity; 2. In holding that the deed from Campbell to Peter Hevner was good at common law; 3. In holding that this deed was not void by virtue of the statute of 32 Henry VIII., Ch. 9. We proceed to consider them in the order here stated. 1. It is not apparent that any good ground for the intervention of a court of equity has been manifested in this case. If the deed from Campbell to Hevner is void as against the complainant Corcoran, for the reason that it was made by one out of possession, such invalidity can be shown in the pending suit in ejectment at common law as well as in this equity proceeding; and no discovery is needed in aid of that position. And if, on the other hand, a person out of the possession of property, but holding the title to it, is not pre — 357 — eluded by law from making conveyance of such title, and the conveyance is not void as against the person in possession, it does not seem to be of much consequence to the latter that the deed was the result of a champertous agreement between the grantor and the grantee. At the most, in that event, the champertous agreement would simply subject the parties to it to the penalties provided by the statute or attendant upon the offense of champerty and maintenance as a misdemeanor. And as no specific ground of equity jurisdiction is shown in the bill other than the alleged invalidity of the deed from Campbell to Hevner, and the propriety of discovery to show the champertous character of the agreement between these two, we do not see that the bill can be maintained. It is not alleged that the deed is a cloud upon title, or, indeed, that there is any title upon which it could be a cloud. Nor does it appear that it is at all necessary to the complainant’s cause that the champertous character of the contract between Campbell and Hevner should be established. It is quite evident that Hevner’s conduct in the transaction was not dictated by the highest sense of honor, but if he did no more, so far as the complainant is concerned, than he was by law entitled to do, his motives and his purposes, however unworthy, cannot be a ground for the intervention of a court of equity. For it is not shown that he bore to the complainant any such relations of trust and confidence as would preclude him in equity from acting in antagonism to the complainant’s interests. It is evident, therefore, that the only substantial question in the case is, whether the deed from Campbell to Hevner was void, either by the common law on account of the want of seizin in the grantor, or in consequence of the provisions of the statute of 32 Henry VIII., Ch. 9, against the conveyance of titles by those out of possession. 2. This question, however, in view of the emphatic utterance of the Supreme Court of the United States in the case of Roberts v. Cooper, 20 How., 467, and of the general tendency of judicial authority throughout the country, we can — 358 — scarcely consider any longer an open one in this jurisdiction. In the case to which we have referred, the Supreme Court, by Mr. Justice Grier, said: “In this country, where lands are an article of commerce, passing from one to another with such rapidity, the ancient doctrine of maintenance, which makes void a conveyance for lands held adversely, is in many States entirely rejected. In some it has been treated as obsolete by the courts; in others it has been abolished by statute; while with some it appears to have found more favor. The ancient policy, which prevented the sale of pretended titles, and held the conveyance to a third person of lands held adversely at the time to be an act of maintenance, was founded upon a state of society which does not exist in this country. The repeated statutes which were passed in reigns of Edward I. and Edward III. against champerty and maintenance arose from the embarrassments which attended the administration of justice in those turbulent times, from the dangerous influence and oppression of men in power. See 4 Kent’s Com., 477. “ The earlier decisions of the courts of Michigan seem to have adopted this antiquated doctrine as a part of the common law in that State. But so far as concerns its application to sales by one out of possession, the» legislature have annulled it.” It is very true,’ as indicated in the last sentence, that the case of Roberts v. Cooper, which went up from the State of Michigan, was controlled by express legislation in that State.' But it is'evident that, if there had been no such legislation, the decision, on general principles, would not have been different, unless the Supreme Court, in antagonism to its own views, would have felt itself bound in that case by the previous decisions, to which it refers., of the courts of Michigan. It is plain what its own views are on the general subject, apart from legislation or complicating decisions of the States; and those views must be our guide in the District of Columbia. It is unnecessary for us to seek other authority than this; but other authority is not wanting in the — 359 — courts of the State through which, if at all, we might be presumed to have inherited the statutes of England on this subject. As early as the year 1718, in Maryland there seems to have been a prosecution under the statute of 32 Henry VIII., with what result we are not advised. Again in 1768, there was a qui tam action, as it was called, to recover the penalty under the statute for the purchase of a pretended title. The case is that of Britton v. Ridgely, 4 Harris & McHenry, 503; but there was no final decision of it by the courts; it was discontinued by consent. In the year 1830, in the case of Gwynn v. Jones, 2 Gill & Johnson, 173, it was held that " it is a case of constant occurrence that a grantor, having a right of entry on land, conveys it to another, and therewith necessarily the power to maintain ejectment for it.” The statute does not appear from the opinion to have been urged in this case; but the question was directly involved. In the case of Cresap's Lessee v. Hutson, 9 Gill, 269, a plaintiff in an ejectment suit, after the commencement of the action, but before trial,; conveyed by deed his interest in the lands in controversy to a third parfy; and it was held that the pendency of the suit did not make the deed void; that, on the contrary, the deed was good, and the plaintiff was barred by it from recovery, inasmuch as the plaintiff, to recover in ejectment, must have the legal estate in him both at the commencement of the action and at the trial. This decision was rendered in 1851. In the case of Schaferman v. O’Brien, 28 Md., 565, decided in 1868, the question was specifically raised whether the statute of 32 Henry VIII. was in force in Maryland. The court there said: "It has also been insisted that the complainant,, having purchased the judgment against Leiman subsequent to the deed, has no standing in court — that such a purchase savors of champerty, is in violation of the statute of 32 Henry VIII., Ch. 9, recognized in Kilty’s Report as in force in this State.This statute prohibits under penalties the buying or selling — 360 — of any pretended right to land, unless the vendor is in actual possession of the same, or of the reversion or remainder. “‘The ancient policy which prohibited the sale of pretended titles as an act of maintenance was founded upon a state of society which does not exist in this country.’ 4 Kent, 526. The statute of Henry VIII., Ch. 9, is not rigidly enforced in this country. Sedgwick v. Stanton, 14 N. Y., 289. . . . ‘Maintenance now means when a man improperly and for the purpose of stirring up litigation and strife, encourages others either to bring actions or to make defenses, which they have no right to make. Findon v. Parker, 11 Meeson & Welsby, 679; 4 Kent, 531.’ “We are not aware of any case in the judicial history of this State, where the provisions of the statute of Henry VIII. have been enforced, without meaning to assert that there might not be such exceptionable conduct savoring of champerty and maintenance as to be punishable, yet there can be no doubt that this statute is, in a great measure, now obsolete.” From these references, although the statute of 32 Henry VIII., Ch. 9, is inserted both in Kilty’s Report and Alexander’s British Statutes, as being in force in Maryland, it is evident that both authors admitted it with some doubt and hesitation, which the courts have now dispelled by making it clear that the statute never has been actually enforced, and that it is undoubtedly obsolete. We may add to this that, notwithstanding that there has been repeated occasion for its enforcement in this District, if it ever was the law, yet there is not a single instance of its application in our judicial annals. On the contrary, the statute has been uniformly repudiated in our practice; and numerous titles in the District of Columbia depend upon deeds of conveyance made in total disregard of its provisions. We do not desire to be understood, however, as holding •that champerty and maintenance are no longer reprehensible or criminal under our laws; or, as was intimated in the case — 361 — of Schaferman v. O’Brien, supra, that there may not be cases where the purpose of the parties to stir up litigation is so plain that their acts should be regarded as void. We simply decide that a deed made by a party out of possession is not in itself void by reason of the party’s being out of possession. We are of opinion that the court below was right in dismissing the bill in this case; and we therefore affirm its decree with costs.