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Cresinger v. Lessee of Welch.

Dec. Term. 1846.

IN BANK. Jackson v. Demont, 9 John. 55. In New York, it is held, that if a person, out of possession, convey land held adversely by another, the conveyance is void for maintenance, and the title of the land remains in the grantor; Williams v. Jackson, 5 John. 489. We entirely approve the New York decision, that the conveyance which is void on the ground of maintenance, creates no forfeiture of the grantor's title; but if it did, that circumstance would not weaken the defence under consideration. The authorities all concur, that the grantee, in a case like the present, takes nothing by the deed. Martin v. Pace, 6 Blackf. 99.

So in Bowman's Devisee v. Wathen and others, 2 McLean's Rep. 380, the same doctrine is held. "If the possession was 'held adverse, the deed conveyed no title, In Indiana, there is no statute which prohibits the sale of pretended titles. But 'the statute of 27 Hen. vii, was in affirmance of the common law. And in Co. Litt. 369, it is laid down, if a person out ' of possession convey land which is held adversely, the conveyance is void. 9 John. Rep. 55; Partridge v. Strange, Plowd. 77; Fite v. Doe, 1 Blackf. 127."

The principle has moreover been recognized in a late case by this Court. In Weakly v. Hall, 13 Ohio Rep. 175, Judge Wood remarks: "The English and American Courts have 'considered agreements founded on such considerations as 'champerty and maintenance, as against sound policy, and void; Key v. Vattier, 1 Ohio Rep. The common law dis'courages officious intermeddling in the litigation of others, as it clearly ought. In some of the States, they have statutes passed to prevent it, in others not; but where no statutory regulation exists, the common law is universally holden to ' prevail, as imported by our ancestors, and applicable to our local circumstances."

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In Maryland, where this deed appears to have been executed, it would have been held void; 4 Kent's Com. 448. For in that State the doctrine prevails, that a conveyance by a party out of possession, and with an adverse possession against him, is void. 4 Kent's Com. 448.

Cresinger v. Lessee of Welch.

Dec. Term,

1846.

It is said, however, that the Supreme Court of this State has IN BANK. decided, in Hall's Lessee v. Ashley and Craven, 9 Ohio Rep. 96, that a deed for land, notwithstanding adverse possession at the time of its execution, is valid. But that case will, on examination, be found clearly distinguishable from the present; and even if it were not, a consideration of the reasoning and authorities might lead to a different conclusion.

It that case, it appears that adverse possession was proved on the trial. But, from the abstract of the defendant's argument, it does not appear that the point was made on the motion for a new trial. Not one authority is cited to that point. But the Judge, in delivering the opinion of the Court, alludes to the question as having been made, and expresses his views upon it. In that opinion the Judge seems to have thought, that the doctrine of deeds being void in cases of adverse possession, was derived solely from the English statutes against champerty, and that those statutes not being in force in this State, the law did not prevail. He moreover attributes the passage of these statutes to "peculiar exigencies; such as signal revolutions, 'when the property of the kingdom, to a great extent, changed hands, and to the introduction of uses."

Now, it has been decided, as we have seen by numerous respectable tribunals-the Supreme Courts of New York, Massachusetts, Indiana, and the Circuit Court of the United States, that this doctrine has no dependence whatever upon any English statutes; that it has ever been a principle of the common law, depending upon no "peculiar exigency," occasioned by no "signal revolution," and having not the remotest connection with the introduction of uses." History, moreover, informs us, that since the Norman conquest, no revolution, however "signal," has effected any great change in the possession of lands in England. And, says Chancellor Kent, "this principle ' is not peculiar to the English law; it was a fundamental doc'trine of the law on the continent of Europe-in Holland and in Germany. It seems to be the general sense and usage of < mankind, that the transfer of real property should not be valid,

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Dec. Term,

1846.

6

Cresinger v. Lessee of Welch.

IN BANK, unless the grantor hath capacity, as well as the intention, to ' deliver possession." Sir Wm. Blackstone says, that it prevails in the code of "all well governed nations;" 4 Kent's Com. 448. And, again, he says: "The doctrine that a conveyance by a party out of possession, and with an adverse possession against him, is not valid, prevails equally in Connecticut, Mas'sachusetts, Vermont, Maryland, New York, Virginia, North Carolina, Kentucky, Indiana, and probably in most of the other States." 4 Kent's Com. 449.

In three States only does the different doctrine prevail, viz: New Hampshire, Pennsylvania and Tennessee. 4 Kent's Com.

449.

Whatever may have been its origin, this doctrine does not depend for its existence upon English statutes, or any other statutes, but obtains, as a settled principle of the common law, whether the States have, or have not, statutes against champerty. Nor does it depend upon what Judge Grimke terms "peculiar exigencies, which are almost entirely foreign to our habits and condition," but is sanctioned in nearly every tribunal in this country, having the same condition and habits as ourselves; and it is because such sales are, in the language of the later opinion of Weakly v. Hall, 13 Ohio Rep. 175, “against sound policy, and void."

It is true, as is said by Chancellor Kent, that the principle was founded, that is, had its commencement "in a state of society which does not exist in this country." And so did almost every principle and rule of law relative to real estate, which is still cherished. But although the state of society is changed, the principle and its application, resting upon reason and policy, has undergone no change; for it has been found adapted to every age and state of society-foreign to no "habits or condition." That portion only of the ancient policy, declaring a forfeiture of the grantor's estate, and imposing a penalty upon the purchaser, has, in the absence of express statutes, been abandoned; 4 Kent's Com. 446, 447; 6 Blackf. Morcover, the doctrine expressed by the Judge, in 9 Ohio Rep.,

Cresinger v. Lessee of Welch.

Dec. Term,

1846.

is overruled, partially; and so far as the general principle he IN BANK. asserts, by the late case of Weakly v. Hall, 13 Ohio Rep. 175, wherein it is asserted, "that the common law principle in relation to champerty and maintenance does exist, notwithstanding the absence of express statute," and is universally holden to prevail, as imported by our ancestors, and applicable to our circumstances. The opinion, therefore, in Hall's Lessee v. Craven, 9 Ohio Rep., is to be limited to the precise case then before the Court; and, beyond that, is neither correct history nor solid law.

But should this Court hold, upon the authority of Hall's Lessee v. Craven, that a deed might, under some circumstances, be valid, notwithstanding adverse possession, still the present is distinguishable from that case.

In Hall's Lessee v. Craven, neither grantor nor grantee had any knowledge, at the execution of the deed, of an adverse possession. The tenants claiming under the heir at law had a merely naked possession. There was nothing to impeach the fairness or motives of the parties to the deed; no "buying a lawsuit," as Welch termed it, nor any reason whatever to question the title, or suspect that it would be contested. What constitutes the turpitude of such acts, in the eyes of the lawvexatious litigation, harrassing and overreaching innocent persons in possession-seems to have been wholly absent from the

case.

Whereas, at the time this conveyance was made, "when he bought the land of us," says William H. Lupton, "Rezin 'Welch knew that we had before deeded and sold the same 'land to Mr. Kline. Rezin Welch mentioned to Cyrus and 'myself that he was buying a lawsuit, and told us there was 'five or six persons living on said land, and that he expected 'to have a great deal of lawing' before he would get pos'session of said land." (Wm. H. Lupton's deposition.)

Whilst, therefore, in the case of Hall's Lessee v. Ashley, there seems to be nothing calling specially for the interference of the law-nothing demanding its stern rebuke-it is diffi

Cresinger v. Lessee of Welch.

Dec. Term, 1846.

IN BANK. cult to conceive a case which would, (if Welch's deed be upheld,) more than the present, encourage, promote and extend litigation; "that indicates a more officious intermeddling in the litigation of others," and therefore, in the language of the opinion, in 13 Ohio Rep. 175, " to be discouraged by the common law, as against sound policy and void, and which the law of 'Ohio will not tolerate."

This difference in the circumstances of the cases, as regards the state of title at the date of the deed; the knowledge, conduct and design of the parties, in respect to the tenants in adverse possession, warranted a difference in the principle of law to govern them. In one case, it was a purchase of a valid right, without knowledge of adverse claim or possession. But, in the present case, it was "buying a lawsuit" with open eyes, full knowledge, and declared intention to speculate, by “lawing" the tenants out of their possession.

Now, in Massachusetts, Somes v. Skinner 3 Pick. 61, a distinction has been made, where the purchase has been knowingly made, with intent to disturb possession, from the case where the adverse possession was unknown at the time. It is there said, where the grantor is disseized, and this fact is known to the grantee at the time, by the policy of the law, and in virtue of ancient statutes, perhaps the deed would be wholly inoperative, both parties being transgressors in relation to such conveyance; but where the disseizin of the grantor is not known, which may be where the land granted is remote from the domicile of the parties, as no offence will have been committed, there seems to be no good reason why the contract between the parties should be defeated; Somes v. Skinner, 3 Pick. 61. And, in New York also, a distinction has been suggested between the sale of a pretended title, on speculation, and that of a valid right. 3 Johns. Cases, 105.

Whatever, then, may be thought of the law expressed in Hall's Lessee v. Craven, and even if this Court should reassert it as a general rule; still, the circumstances of this case withdraw it from the operation of that rule, and render Welch's

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