Roberts v. Cooper.

agreeth to have a part of the thing, or land, or debt, which is in suit, that shall be recovered if the party recover, to maintain and aid him in the action and in the manner for which he sueth.' (a.) Then he who is grieved shall have this action against him who maintaineth the suit for the same intent.'” The author then proceeds to give the form of the writ which is not material to the argument, and therefore is omitted. "Champerty is the most odious species of maintenance." (Comyns, Dig., tit. Maintenance, A 2.) "If he who maintains another is to have, by agreement, a part of the land or debt, &c., in suit, it is called champerty," (ib.;) "or if he agrees to have a rent or other profit out of the land," (ib.,) "though the agreement be by parol or deed." (Ib.) Blackstone, in his Com., vol. 4, p. 135, speaks of these champertors as "the pests of civil society,, that are perpetually endeavoring to disturb the repose of their neighbors, and officiously interfering in other men's quarrels, even at the hazard of their own fortunes;" and he adds, they "were severely animadverted on by the Roman law."

2. Champerty is an offence at the common law, irrespective of the old English statutes on the subject. (Com. Dig., tit. Maintenance, A 2; 4 Kent. Com., p. 449; Story's Eq. Com., sec. 1048; 3 Greenl. Ev., sec. 180; 1 Russell on Crimes, 180; 3 Vesey, jr., 449, Wallis v. The Duke of Portland; 11 Mass. Rep., 549,-Sweet v. Poor; 5 Pick. Rep., 348, Brinley v. Whitney; ib., 353, per Parker, C. J.; 9 Metc. Rep., 489, Lathrop v. Amherst Bank; 22 Wend. Rep., 403, Small v. Mott; ib., 405, 406, per Walworth, Ch.; 1 Ham. Rep., Ohio, 132, Key v. Vattier; 13 ib., 175, Weekly v. Hale; 4 Litt., 417, Rust v. Larue; 5 Monr., 416, Brown v. Beauchamp; 3 S. and M. Rep., 130, Sessions v. Reynolds.)

3. Champerty is malum in se at the common law, and was so held to be by Bracton before the enactment of the statutes; (3 Edward I, ch. 28, and ch. 33; and 28 Edw. I, ch. 11, per Walworth, Ch., 22, Wend. Rep., 406.) That learned Chancellor, after denouncing champerty as the worst specres of maintenance, and after admitting that the revised statutes of New York had in a general degree abrogated the law of maintenance, adds: "I do not think, however, that an agreement actually champertous, as when a stranger to the subject of litigation, who has no interest therein in law or equity, or in expectancy by the ties of blood or affinity, agrees to assist in embroiling his neighbor in litigation, or in carrying their suits through the different courts after they are commenced, upon a stipulation that he shall receive a share of the fruits of the litigation as a reward for his mischievous interference, can be enforced in courts of justice."

Roberts v. Cooper.

4. The courts in this country have uniformly pronounced against the validity of all contracts or transactions tainted with champerty. In Massachusetts, 11 Mass. Rep., 549, Sweet v. Poor; 5 Pick. Rep., 348, Brindley v. Whiting; 9 Metc. Rep., 489, Lathrop v. Amherst Bank; in New York, 2 Sand. Supr. Ct. Rep., 141, Satterlee v. Frazer; 5 John. Ch. Rep., 44, Arden v. Patterson; 22 Wend. Rep., 403, Small v. Mott; in Ohio, 1 Ham. Rep., 132, Key v. Vattier; in Kentucky, 8 B. Mon. Rep., 488, Thompson v. Warren; in Alabama, 9 Ala. Rep., 755, Byrd v. Oden; 17 ib., 206, Elliott v. McClelland; 24 ib., 472, Wheeler v. Pounds; in Mississippi, 7 S. and M., 130, Sessions v. Reynolds; 11 ib., 249, Doe v. Ingersolls; in Tennessee, 11 Humph. Rep., 189, Wilson v. Nance; 10 ib., 342, Morrison v. Draderick; and in Illinois, 11 Ill. Rep., 558, McGoon v. Ankeny. In Dishler v. Dodge, 16 How. Rep. S. C. U. S., 622; ib., 632, 633, 645, where Dodge, the defendant in error, treasurer, and tax collector of Cuyahoga county, Ohio, had distrained the amount due for taxes from certain banks in bank notes, and had deposited such notes with the Cleveland Insurance Company, and where the banks had subsequently united in a written and absolute transfer of these notes to the plaintiff in error, who brought replevin, it was held by two of the justices of this court (Catron and Daniel) that the transaction was "disreputable," and the transfer void for champerty. But if, in place of making an absolute sale, the banks had transferred the notes on an express agreement that Dishler should institute an action, prosecute it to consummation, and divide the results as in this case, would not the whole court have united in pronouncing the transfer corrupt, and the title thus attempted to be acquired a nullity? It was precisely because the transfer was absolute, and the banks had, or were to have, no remaining interest, that the majority of the court upheld the transaction.

5. Champerty being deemed immoral, and at the common law rendering all contracts or transactions tainted therewith null and void, it is to be presumed that the common-law rule on that subject obtains in the State of Michigan. "But if maintenance or champerty," says Ch. J. Parker, (1 Pick. Rep., 417, Thurston v. Percival,) "is malum in se, or an offence at common law, it is to be presumed, without any statute, that the same law is in force there;" that is to say, in the State of New York. But we are not left to presumption in this case; for the Supreme Court of Michigan have held expressly that the common law is in force in that State, except so far as it is repugnant to or inconsistent with its Constitution or statutes. (2 Doug. Rep., 184, Stout v. Keyes; ib., 515, Rue High, appellant; ib., 528, per Wing, J.) And they have particularly recog

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nised and enforced the common law, on the subject of maintenance and champerty, in that State. (1 Doug. Rep., 19; ib., 38, Buckner's Lessee v. Lawrence; ib., 566, Stockton v. Williams.)

6. The statute of Michigan, Rev., 1846, tit. xiv, ch. 65, sec. 7, p. 263, did no more than remove the illegality of a conveyance when there was an adverse possession. It did not touch the illegality of an agreement tainted with champerty, nor make a deed, executed in conformity with such agreement, valid. The statute merely allows a grantee, in a case of adverse possession, to recover, in his own name, what the law, as it previously stood, permitted him to do, in the name of his grantor. (1 Doug. Rep., 546, Stockton v. Williams; 5 Pick. Rep., 348, Brinkley v. Whiting; 8 B. Mon. Rep., 368, Ring v. Gray; 11 Humph. Rep., 189, Wilson v. Nance.)

7. The authorities show that the offence of champerty is quite distinct from that of the illegality of buying a title in a case of adverse possession. This distinction is recognised in this country, both in statutory enactments and by the decisions of the courts. Thus, in Ohio, it is held that a conveyance of land, in the adverse possession of another, is not void, (15 Ohio Rep., 156, Cressinger v. Welch ;) but that the aid of the courts will not be given to sanction and enforce champerty or other contracts, contrary to public justice and to the peace and happiness of the community. (1 Ham. Rep., 132, Key v. Vattier.) There can be no champerty without an adverse possession; but in Michigan there may be a sale or conveyance where there is an adverse possession, either with or without champerty. In the latter case, the deed is made valid by the statute referred to, and in the former it is void at the common law. In England, and in most of the States of this Union having laws against buying disputed titles, the question of champerty can hardly arise as in this case; but the statute of Michigan, having enabled a party disseized to convey notwithstanding, we now find a champertor in court, invoking the judgment and process of the court to consummate the illegality. Will the court aid him? In ordinary cases, the champertor merely contracts to pay or contribute to the expenses of a lawsuit commenced, or to be commenced, in the name of the party with whom the arrangement is made, in consideration of a share of the proceeds; but Blackstone, in his Commentaries, (4 vol., p. 135,) says, "that, in our sense of the word," champerty "signifies the purchasing of a suit, or right of suing;" and then he adds: "No man should purchase any pretence to sue in another's right." Quoted and approved by Catron, J., in 16 How. Rep. S. C. U. S., 633.) "I am not aware," says the

learned judge, "that this, as a general rule, has been disputed." Certainly not, if the case involves a division of proceeds; and this is exactly what Mr. Cooper has done. The law of champerty does not require an obligation to pay the costs of the suit, or a contribution in cash to the expenses of the litigation, to constitute the offence; but professional or any other aid, in consideration of having a part of the subject or thing in controversy, is sufficient. (Vide opinion of Green, J., Backus v. Byron, Appendix B.) In this case, Cooper has made himself liable for all the costs, and assumed all the expenses, by taking a deed of the property, and instituting a suit in his own name. Surely the court will not hold that a champertor can elude the imputation arising in the case, by taking a conveyance and making himself plaintiff in a lawsuit which he prosecutes on shares. Champerty will have free course in Michigan if that can be done. The pains and penalties inflicted by the laws of that State on champerty, as a crime at the common law, (vide opinion of Green, J., Backus v. Byron, Appendix B,) will amount to nothing.

8. The principles here indicated are fully sustained by a recent decision of the Supreme Court of Michigan, (vide Backus v. Byron, Appendix B.) The opinion given by Judge Green recognises and establishes the following propositions:

1. That the common law on the subject of champerty is in full force in Michigan, and makes all contracts tainted with it void.

2. That it is not necessary to constitute the offence, that the party should obligate himself to pay the taxable costs of a suit, or to contribute to the expenses of the litigation in cash.

3. That champerty as a crime at the common law is to be visited with pains and penalties under and by virtue of a stat ute of that State. (Revision 1846, tit. xxx, ch. 161, sec. 22.)

The learned judge was the revisor of the statutes of 1846, and is likely to know whether the Legislature intended to set aside or abrogate the law of champerty. The positions assumed in Backus v. Byron are so ably reasoned and so thoroughly sustained by authority, that it will be superfluous to add another word on the general subject. (For many authorities, both English and American, not hereinbefore quoted, see the opinion of Judge Green.)

9. If there ever was a case calling for a rigorous application of that law, it is this. The Minnesota Mining Company were in possession of the premises in good faith, relying on the construction given to the act of 1847 by the authorities of the United States, without the slighest suspicion that Michigan could or would advance pretensions under the school-land

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compact, and had made costly improvements on the same, when such premises were put up at auction at Lansing, behind their backs, and bid in for a song. Cooper must have been cognizant of all the facts. He knew the situation of the property, and that the claims of Bacon would meet with stern resistance. With his eyes open, after having consulted counsel, he deliberately entered into a copartnership of champerty with Bacon, and now asks the interposition of this court to enable him and his associate to realize the object and end of the corrupt arrangement. What is particularly aggravating in the case is, the certainty that Bacon could not secure his unjust acquisition by a suit in the name of Williams. His recent deed to the Minnesota Mining Company evinces pretty clearly what the course of the latter would have been, on being informed of the true character of the transaction. He would have arrogated equitable powers, and done justice to the parties.

10. If the deed from Williams to Cooper was void for champerty, then we have a perfect title, (even though we are overruled on other points,) by reason of the deed from Williams and wife to the company, of June 26, 1856, and it is submitted that the testimony offered should have been admitted, and the judgment below should be reversed for its exclusion."

The counsel for the defendant avoided a reargument of the points decided in 18 Howard, but upon the new matter made the following points:

Taking these facts in detail, the first question presented is, whether the deed from Williams to the Minnesota Mining Company was properly rejected.

This deed from Williams bears date since his deed to Cooper, and since the decision of this court affirming the validity of Cooper's title. The record also shows that Williams was a naked trustee of the legal title, and conveyed to Cooper, at the request of Bacon, who was in equity the owner of the land.

The subsequent conveyance, therefore, of Williams, without authority from Bacon, to the Minnesota Mining Company, who well knew the fact of the prior conveyance to Cooper, and the relation Williams sustained to the title, was in law a fraudulent act of both grantor and grantee, and could pass no title if his former deed was valid, and had conveyed the land to Cooper. (City of New Orleans v. De Armas, 9 Pet., 236; United States v. Arredondo, 6 Pet., 738.)

A grant is an extinguishment of the right of the grantor, and therefore he and all claiming under him are always estopped by the grant. (Fletcher v. Peck, 6 Cranch, 87; Terrett v. Taylor, 9 Cranch, 43; Pollard's Lessee v. Hogan, 3 How., 212.)