Cresinger v. Lessee of Welch.

IN BANK. rendered null and void. By the revised statutes of New York, Dec. Term, the forfeiture is abolished, but the act is made a misdemeanor.

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See 4 Kent, 448-9.

In Massachusetts, the penalty of the statute of Henry VIII, has never been adopted, but the common law doctrine is there assumed, that such conveyance is void, and "champerty is an offence" in that State. 4 Kent, 448.

In Indiana, the Court say, in 1 Blackford: "We have no 'particular statute prohibiting the buying and selling of pre'tended titles, and therefore reference must be had for the doc'trine to the common law of England, which is adopted in our 'code." The statute of Henry VIII, on the subject, is said to have been enacted in affirmance of the common law, and to have made no alteration in it except that of adding a new penalty. That statute, therefore, and the construction put upon it a few years after its enactment, in the case of Partridge v. Strange, Plowd. 77, furnish the necessary information.

The existence of the statutory provisions in New York, the adoption of the common law doctrine, as affirmed by the statute of Henry vii, in Indiana, and the fact that "champerty is an offence" in Massachusetts, abundantly explain the cases cited by the plaintiff's counsel, from the reports of those States respectively. In those States, they have seen proper to apply to their peculiar laws and systems this doctrine of the common law.

In other States, it appears that a contrary doctrine prevails; for example, in New Hampshire, Pennsylvania and Tennessee. In these States, "a conveyance by a disseizee would seem to 'be good, and pass to the third person all his right of possession ' and of property, whatever it might be." See 4 Kent, 449.

Inv. Lessee of Whitman, 6 Binney, 416, is a case precisely similar to the one now before the Court. The conveyance had been made by one out of possession to the lessor of> the plaintiff, of lands held adversely by a third person. The Court say, upon this point: "Without entering into the con

Cresinger v. Lessee of Welch.

Dec. Term,

1816.

'sideration of the law of England, it may be affirmed with IN BANK. 'certainty, that the law, as held there, was never adopted here. From the equality of condition of persons in this country, 'there was no danger of maintenance from the interference of 'powerful individuals. In our courts, it has never been made. 'a question, whether the grantor or devisor was in or out of 'possession; and, to make it now, would disturb what has been 'looked upon as settled."

In Ohio, this question has arisen, been discussed, fully considered and decided; and the doctrine which is applicable to our peculiar system, has been settled.

In Lessee of Hall v. Ashley & Craven, 9 Ohio Rep. 96, this identical question arose: F. L. Henop was out of possession of the land - Ashley & Craven were in possession, holding adverse to Henop, under a deed of conveyance; there had been a judicial sale of the land, and, as in the case before the Court, there were sundry intermediate conveyances of the land before Ashley & Craven acquired title. Under these circumstances, Henop conveys to Hall by a release deed. It is not to be supposed that Hall bought the land without looking at it, or without knowing of the possession and claim of the defendants; nor is it to be doubted but that Hall, in the favorite language of the plaintiff's counsel, knew that he was "buying a lawsuit." Although the imperfect report of the argument of the counsel of Ashley & Craven does not set forth their argument on this point, yet the question was discussed by the counsel on the other side, in answer to their argument, and is fully considered by the Court in noticing the defendant's argument.

The counsel for the plaintiff have elaborately criticised the reasoning of the Court in this case, as well as their historical information as to the origin of the doctrine upon champerty. We think the learned counsel are unfortunate, both in their criticism and "history." We believe that it is a matter of history, that the statute of 32 Henry VIII did grow out of "peculiar exigencies," and that it was "adapted to a state of society very different from what prevails here." It is said, that

Cresinger v. Lessee of Welch.

IN BANK. this statute was but in affirmance of the common law; but, if Dec. Term, the "exigencies" do not here exist which required the passage

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of that act, neither do those circumstances, or that state of society here exist, which require the application of that doctrine which this act merely affirmed.

The Court say: "Both of these classes of laws were adapt'ed to a state of society very different from what prevails here. 'So far from opposing obstacles to the transmission of land, we 'have endeavored to render it as free as possible. The simple 'prohibition of selling land where the vendor has no title to it, (29 Ohio Laws, 142,) has set bounds to the only real incon'venience and mischief which has sprung from the practice of 'champerty."

We believe that this was the first case in which the Supreme Court of Ohio were called upon to determine how far this doctrine of the common law was applicable to our institutions and state of society. As each of the other States have established a policy for themselves, either by statute, or recognizing or disclaiming the doctrine of the common law, so our State has adopted its own policy.

The counsel refer to the case of Key v. Vattier, 1 Ohio Rep. 132, and 13 Ibid. 175, and even claim that the latter case partially overrules the case in 9 Ibid.

The counsel have ingeniously confused distinctions, which are palpable.

In the case in 1 Ohio Rep. the very essence of the contract was maintenance and champerty. The plaintiffs (lawyers,) asked the Court to enforce a contract, where the conditions precedent to the defendant's covenants, which the plaintiff averred and must prove, were palpable acts of maintenance. The Court very properly held that the contract was against public policy, and that they had a right to treat it, and would treat it, as they would every other contract which was against public policy. But how wide is the difference between the application of that salutary principle, and the doctrine which is here sought to be maintained? If there was a subsisting contract between Welch

Cresinger v. Lessee of Welch.

Dec. Term,

1846.

and the Luptons, by which the Luptons agree to convey to IN BANK. Welch one half of the land, if recovered - Welch to carry on the lawsuit, pay expenses, &c. and Welch now came into Court, and sought to enforce this contract against the Luptons, the Court might very properly say, the contract is against public policy, and we are not bound to enforce it. But Welch seeks to enforce no contract which is against public policy. He stands upon a legal right and legal title. He has the legal title to the land, or he has no right to recover. Unless the law makes void the conveyance by which he claims title, we apprehend that, if he had acquired the title even by crime, the tenants in possession could not avail themselves of the objection. It was in the power of the Luptons to convey to Welch a title to this land, and that power was exercised by the deed; if not, he has no title. It is a question of title, and the Court are called upon to determine whether it is in Welch. If a law was in existence in this State prohibiting such a purchase as the one made by Welch, his deed might be void, because of the want of power thus to convey or acquire title.

It is further said, that "it seems to be the general sense and 'usage of mankind, that the transfer of real property should 'not be valid, unless the grantor hath capacity as well as the 'intention to deliver possession." This doctrine proceeds from the old feudal rule, that "no feud could be created, or transferred, without investiture." It is not applicable to modern titles or conveyances.

As for the case in 13 Ohio Rep., the Court recognize the case in 1 Ohio Rep. Judge Wood says, that "where no stat' utory regulation exists, the common law is universally holden ' to prevail, as imported by our ancestors and applicable to our 'local circumstances." How this decision overrules, in any respect, the case in 9 Ohio Rep., we do not understand.

Judge Grimke thinks that the doctrine which makes void conveyances of land where the grantor is out of possession, is not applicable to the state of society which prevails here. Judge Wood does not say that it is.

Cresinger v. Lessee of Welch.

IN BANK. We have discussed this case as though it really was, as the Dec. Term, plaintiff's counsel claim, infected with champerty and mainten

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ance.

In 13 Ohio Rep., Judge Wood defines champerty thus: "An agreement to prosecute, at one's own, risk and expense, and to take a part of the thing received, in compensation."

Blackstone says, that "maintenance is an officious intermed'dling with a suit that in no way belongs to one, by maintain'ing or assisting either party with money, or otherwise, to pros'ecute or defend it."

In the case before the Court, according to the testimony of Mrs. Lupton, the land which these boys inherited from their father was sold to Kline for horses, when two of the boys were infants. They joined in the deed, but the elder brother received all the horses, and the minors received, as she believes, no part of the proceeds. This deed was a void or voidable one. Notwithstanding the deed to Kline, the boys really owned the land. They, at the same time, avoid their deed to Kline, and sell their land (not a "lawsuit,") to Welch. He pays them, not a trifling consideration, but $1,250. As there were other persons in possession of the land which belonged to these minors, Welch may have supposed that possession would not voluntarily be given up to him. He neither prosecuted, maintained nor intermeddled with the suit of any one. He bought land of those who he supposed had the title. It was just such a "speculation" as the one in 9 Ohio Rep. If there was nothing demanding the "stern rebuke" of the Court in that case, there is nothing in this. The choice epithets applied by the counsel to Welch and his conduct, are not called for by the circumstances of the case.

Third: It is claimed that the deed to Welch is not such a deed as to entitle him to sustain an action of ejectment; that it is a mere release of an interest, without any conveyance of title.

The objection is certainly futile. The language of the deed is: "hath bargained and sold, and by these presents doth give,