Peck v. Heurich

Mr. Justice Morris delivered the opinion of the Court: The substantial question raised by the exceptions and by the assignments of error is, whether the deed of convey — 280 — anee from the heirs of Ann Bartlett was inadmissible in evidence either on the ground of champerty or for any other invalidity. But another question, also, of great importance, is raised by the record, and has been much insisted upon by counsel for the appellee; and that is, whether, even if there was error in the exclusion of the deed, there was not a total failure of proof on the part of the plaintiffs such as to justify the entry of judgment for the defendant in any event. With reference to this second question, which we may consider first, it appears to us that the course pursued by the plaintiffs ought not to be sanctioned. If approved, it involves the establishment of the practice in suits in ejectment, and indeed in most other suits, that a plaintiff may try his case by piecemeal; that, if any piece of evidence, which he regards as essential or even important, is ruled out, he may abandon the trial, take the chances of appeal, and then, if successful, pursue the same course upon a new trial with reference to the next piece of evidence. And thus there would be a possibility of innumerable trials and innumerable appeals in the same suit, with the result that the administration of justice would be practically blocked. It is very true that it would seem to be a useless waste of time and effort to offer evidence, or to make formal proferí of evidence, when one of the essential links in the chain has been broken and counsel are perfectly well aware that, with such link broken, there can be no recovery. But at the same time, as no plaintiff is entitled to verdict or judgment, unless he makes out a complete prima facie case, it is impossible, in the absence of profert of such a case, for either the court of primary jurisdiction or an appellate tribunal to determine whether he has been actually prejudiced in contemplation of law, by the exclusion of any specific piece of evidence. Assuming, for the present, that it might have been error to exclude the deed in controversy, yet the plaintiffs were not thereby prejudiced if for any other reason they were — 281 — not entitled to recover. They began their proof with the introduction of a deed from one William A. Bradley to Ann Bartlett; but there is nothing to show that Bradley had any title, or was ever in possession, or had any right to the possession of the property, or that the State had ever granted the property. This is an insufficient basis of title (Mitchell v. Mitchell, 1 Md. 44, 52), and if the plaintiffs had in all other respects fully proved their case, it would not necessarily follow that they would be entitled to recover. Possibly in reference to old titles, such as that involved in this suit may have been, it may be difficult, if not impossible, to deduce a complete chain of title from the State; but that it is a difficulty for legislation to obviate; and the difficulty may, in many cases, perhaps in most cases, be removed by proof of possession in the person from whom the title is sought to be deduced. It is obvious at all events, that, inasmuch as any one may make a deed with or without title, some testimony is required either to show a grant from the State, or possession under claim of title from which such grant may be inferred. There was nothing of the kind here. It is true that counsel for the plaintiffs announced to the court that they proposed to prove that Ann Bartlett was the common source of the title both of the plaintiffs and the defendants ; but the fact was denied at the time by the counsel for the defendant, and the proof was never made or offered to be made. Such announcement, therefore, amounted to nothing. Again: It was alleged in the declaration that the defendant unlawfully detained the property from the plaintiffs. The plea of the general issue placed upon the plaintiffs the burden of proving that the defendant was in possession. No such proof was given, or offered to be given. Without it, the plaintiffs would not have been entitled to recover against the defendant, even if they had in all other respects fully proved their case. It does not follow that the judgment was erroneous be — 282 — cause the deed in controversy may have been improperly excluded. In order to reach that conclusion, we must assume that the plaintiffs would have proved the residue of their case by wholly unobjectionable testimony: and this is what we have no right to assume. We think it was due to the plaintiffs themselves that their cause should have been fully set forth; to the defendant, that he should not be vexed with repeated trials for the settlement of questions that might be all settled in one trial; and to the court, that its judgment should have the stability resulting from a full presentation of the plaintiff’s claim. But we do not deem it necessary to base our decision on this ground. The court below based its decision on the ground of champerty; and there seems to be no reason why we should seek to avoid the determination by us also of that issue. It is quite apparent that the practices known by the designation of champerty and maintenance are not obsolete in the District of Columbia: and it is equally apparent that there is no good reason why the law in regard to them should be held to be of less binding force now than at any former time. Many things, it is true, that were once regarded as champertous or savoring of maintenance, are no longer so characterized with us. Deeds by parties out of possession, for example, are not now void for that reason. It is now lawful to stipulate for contingent fees. And it may be even meritorious to aid the poor with money in their effort to recover just legal rights by means of legal proceedings. But from the fact that some of the things which were once reprobated on some peculiar ground of existing public policy are now regarded as perfectly legitimate in view of the altered conditions of society, it does not follow that the law regarding champerty and maintenance has therefore been abolished. In the recent case of Johnson v. Van Wyck, 4 App. D. C. 294, we said: “ Unnecessary and speculative litigation, — 283 — the promotion of inexcusable strife, the vexation of landholders, and the laying of embargoes on the free alienation of their holdings are as pernicious now as they ever were and as needful of redress. Contracts which tend to promote these evils are as much opposed to sound public policy as they ever were, and therefore ought not to be enforced.” In that case, we also said, in reference to the definition of what constitutes champerty, citing from approved and well recognized authorities on the subject: “ ‘ Champerty is the unlawful maintenance of a suit in consideration of an agreement to have a part of the thing in dispute.’ 1 Hawk. P. C. 545; Co. Litt. 368. It has also been defined to be ‘ a bargain to divide the land or thing in dispute on condition of his carrying it out at his own expense.’ Stanley v. Jones, 7 Bing. 369. These definitions have been veiy generally approved. Roberts v. Cooper, 20 How. 467; Brown v. Beauchamp, 5 T. B. Monroe, 415.” In the case of McPherson v. Cox, 96 U. S. 404, relied on by the appellants to take the case now before us out of the operation of the law in regard to champerty, the Supreme Court of the United States, while holding the contract there under consideration not to be champertous, clearly indicated what it did regard as champerty. It is said in that case by Mr. Justice Miller : “ It is said that the contract is obnoxious to the doctrine of champerty. The answer is, that the attorneys did not agree to pay any of the costs; they did not agree to take any part of the land, which was the subject of the suit, for their compensation ; nor did they agree to take anything but money. The single fact that they agreed to wait for their money until complainant could sell the land, and to receive a fixed sum out of the purchase money, does not, under any definition of champerty, bring it within that principle.” In the case before us, it seems to us that the attorney did all the things which are in these authorities enumerated as champertous. He agreed to pay the costs of the litiga — 284 — tion ; he agreed to take as his compensation a part of the land which was the subject of the suit, or a part of the proceeds of sale of it, which amounts to the same thing; and his compensation was not a fixed sum of money, payable out of the proceeds of sale, but a contingent share of the very thing to be recovered or of the money that might be received by way of settlement or compromise. And the character of the enterprise on the part of the attorney was so plainly a speculative one, that in the deed the net results to him are mentioned as “profits.” If this be not champerty, we fail to see wherein there can be champerty. For we are not willing to limit the law, as the argument for the appellant would seek to have us do, to such extreme and we may even say, fantastic enterprises as were developed in the case of Johnson v. Van Wyck. We must regard an agreement by any attorney to undertake the conduct of a litigation on his own account, to pay the costs and expenses thereof, and to receive as his compensation a portion of the proceeds of the recovery or of the thing in dispute as obnoxious to the law against champerty. And that this was the character of the arrangement in the present case, we are entirely satisfied. The very thing in dispute was conveyed or sought to be conveyed, in advance to the attorney and an associate for the express purpose of enabling the attorney to conduct the litigation on his own account and at his own cost and expense; and in consideration of this, he was to retain, at the end of the litigation, one-third of what had been conveyed to him, and was to account to his clients for the other two-thirds. This was certainly an agreement on his part to take as his compensation a part of the thing in dispute ; and it does not alter the case at all that the land, when recovered, was to be sold. That was only the practical mode for a division of proceeds between the parties to the enterprise. There was considerable argument on behalf of the appellants expended in an attempt to show that the deed, — 285 — which contained the agreement of the parties, did not expressly provide for the payment of the costs and expenses of the litigation by the attorney ; and that he might be regarded as advancing the costs in the shape of a loan to his clients. It may be admitted that the contract contains no express covenant that the attorney shall pay the costs of litigation. But no express covenant for that purpose is required, if that was the necessary result of the contract. The title, so far as the clients had title to convey, was vested in the attorney and his co-trustee for the express purpose of instituting suits in their own names and in their own rights; and if the contract were wholly silent on the subject, the plain inference would be that they should pay the costs and expenses. Costs and expenses were to be paid; costs- and expenses, we presume, were paid; and plaintiffs are primarily liable for such costs and expenses. But we are not left to this inference alone; nor is the contract silent upon the subject. The express provision of this document is that Simmons shall retain one-third of the proceeds of recovery “after paying all expenses, costs and expenditures,” and that the heirs of Ann Bartlett shall receive two-thirds of such proceeds, “ clear of any costs or charges whatever." The plain import of this is that the heirs of Ann Bartlett shall be at no cost or expense whatever ; and that Simmons shall receive one-third of the proceeds of the recovery, after he has paid the “expenses, costs and expenditures.” In other words, his right to the receipt of his compensation is dependent on his previous payment of costs and expenses ; and such payment was necessarily part of the consideration for the compensation which he was to have. We are unable to distinguish this case in principle from that of Johnson v. Van Wyck; and we think the court below was entirely right in applying the law of that case to the present suit. It may be proper for us to say that in nothing that we have here said is it our purpose to reflect on the honor or — 286 — integrity of Mr. Simmons, the attorney in this case, who as such became one of the plaintiffs. His course throughout seems to have been straightforward and above-board; and while we must regard his action as illegal and his contract as null and void, we presume that there was here only a misapprehension of the law, and not an intentional violation of it. In view of our opinion, as here stated, with reference to the main objection urged against the admissibility of the deed here in controversy, it is unnecessary to discuss the other grounds of objection that have been taken to it. For, if the deed was null and void from the beginning by reason of its champertous character, as we think it was, the questions that have been discussed as to the time of its delivery and the effect of its registration with regard to the admissibility of the recorded transcript in the place of the original deed, become unimportant, notwithstanding that they .are in themselves questions of serious import. We are of opinion that the court below was right in refusing to admit in evidence the deeds from the heirs of Ann Bartlett to the plaintiffs in this cause ; and that it was right in directing a verdict and rendering judgment thereon for the defendant. And that judgment must therefore be affirmed, with costs. It is so ordered.