Emerson v. McDonnell

SiebeciceR, J. The court’s findings are assailed as not warranted by the evidence in several respects. It is asserted that the evidence does not sustain the court’s conclusion that A. W. McLeod had been retained and employed as defendants’ attorney on September 5, 1899, when he bargained with them for the lands in controversy and when, shortly after, they were transferred to’ him at a price much less than their actual value. This contention is at variance with an affidavit made by McLeod to the effect that he was retained and employed for the defense and that he had accepted such employment and had given notice thereof to plaintiffs’ attorneys, and under it secured an extension of time to answer. The defendant McDonnell and his attorney, Mr. Rusk, corroborate this statement in their affidavits, and the court found in the proceeding on the motion then before it that McLeod had been so retained and employed and thereon awarded the relief demanded. The facts and circumstances of the transaction, bearing on this question, tend to support the court’s conclusion from the evidence, in finding that he was acting as their attorney at the time he bargained for the purchase of the lands involved in this litigation and when he thereafter took a transfer of their title to and interest in them. It is insisted that the fact of his receiving no compensation for his services is of much weight as showing that his appearance Avas merely formal and an accommodation to their regularly retained attorneys. This, hoAvever, cannot be held of controlling significance, for in the subsequent purchase of the lands such a claim would naturally be included and discharged. The evidence tending to support the court’s finding upon this issue is suffi [71] ciently clear to sustain tbe court’s conclusion, and refutes tbe claim tbat it was contrary to tbe clear preponderance of tbe evidence. Tbe court apparently extended to defendants’ attorney every opportunity to present tbe transaction in all its phases and to relieve it from tbe taint of champerty, and to this end made supplemental findings at his request. After full consideration of tbe facts it was manifestly constrained to bold tbat tbe case presented a situation which showed tbat defendants’ attorney bad transgressed tbe bounds of tbe law which prohibits attorneys from purchasing from their clients tbe subjects of pending litigation. Tbe purpose of tbe law in condemning such transactions was aptly stated in Miles v. Mutual R. F. L. Asso. 108 Wis. 421, 433, 84 N. W. 159, and is tbat: “Tbe real mischief which tbe law of champerty aims to prevent is that of encouraging litigation by persons who have no interest therein independent of tbat to be derived from carrying it on in whole or in part at their expense. Tbat vice exists where an attorney purchases tbe claim of bis client in suit with tbe intent to thereafter carry on tbe litigation at bis own expense and for bis own benefit, tbe "same as where be agrees to carry on litigation at bis own expense ... in tbe name of another.” Under tbe circumstances disclosed upon tbe trial it devolved on tbe court to apply this principle of tbe law by declaring tbe transfer to defendants’ attorney void and by denying him tbe benefit of any defense be sought to invoke. It is a well-established practice tbat judicial tribunals will refuse to aid in tbe enforcement of a contract which tbe law condemns as against public policy, and tbe merits of tbe claim cannot be invoked to purge tbe transaction from tbe taint of champerty. Barker v. Barker, 14 Wis. 131. It is plain tbat tbe defendants took no part in nor authorized tbe defense which was in fact interposed in tbe action, and tbat it was in fact made by McLeod for bis own benefit. These considera [72] tions dispose of all the questions now urged for reversal of the judgment upon tbe ground that the defendants were not in default and that the judgment upon the merits should go in their favor. It is claimed also that plaintiffs ratified the arrangement between McLeod and plaintiffs’ attorneys for the redemption •of the lands from all tax sales and deeds, pursuant to which Mr. McLeod deposited with the attorneys a sum sufficient to pay all taxes, interest, and charges which had accrued thereon. Whether plaintiffs’ attorneys had authority for making such an agreement or whether plaintiffs’ acts in respect thereto could be a ratification of it under other circumstances need not be considered, since it is established, as found by the court, that this arrangement was made by McLeod upon his individual responsibility and for his benefit and interest only, and that the money so deposited by him with plaintiffs’ attorneys was for the purpose of establishing the title and interest which he had secured from defendants by the champer-tous transfer. It requires no argument to show that this void transfer cannot be made valid through such a course of action by the interested party. There was no valid contract of sale to him and hence there could be no ratification. We discover no error in the court’s refusal to reopen the case after trial and to receive additional evidence. The court considered the proffered letter as in evidence and it has been so considered here. It appears by the record that plaintiffs’ tax deed is in due form and properly executed, witnessed, and acknowledged. This makes it presumptive evidence of the sufficiency of the tax proceedings and the transfer of the title to the lands described in it to plaintiffs, and entitles them to a judgment upon the record establishing such title and barring the original owners and all persons claiming under them from all right, title, or interest in the lands described in the complaint. By the Court. — Judgment affirmed.