McCall's Admr. v. Capehart , 20 Ala. 521 ( 1852 )

GOLDTHWAITE, J.

The case of Gillespie v. Dew, 1 Stew. 229, and Blevins v. Cole, 1 Ala. Rep. 210, are directly to the point, that the owner of lands may maintain trespass against a wrong doer, where there is no adverse possession, and the current of American authority is to the same effect. Van Brunt, et al. v. Schenck, 11 John. 385; Bush v. Bradley, 4 Day, 306; Con. Society v. Baker, 15 Verm. 119; Dobbs v. Gallidge, 4 Dev. & Bat. 68; McGran v. Bookman, 3 Hill S. C. 265; Leadbetter v. Fitzgerald, 1 Pike, 448; Cohoon v. Simmons, 7 Ired. 189. The charge of the court, therefore, as to the facts, which would make McCall a trespasser, was coirect.

The charge of the court, that if McCall acquired possession of the lands specified in the contract by a trespass, and sold such possession as a trespasser, that the covenant sued on was illegal and void, was also correct. By the terms of this contract, McCall, the intestate of the plaintiffs in error, stipulated to deliver the possession of certain lands to the defendants in error, who claimed title under a purchase at sheriff’s sale, in consideration of a certain sum paid by them at the execution of the covenant, and for the additional consideration, that they should save harmless and indemnify'him from all claims or liability to rent for said lands, to any person, and particularly to one Pryor, who had instituted a suit against him for the recovery of said land. There can certainly be no doubt, that if one who had wrongfully acquired the possession of property, was to stipulate, for a given sum, for restoring it to the owner, the consideration of a contract of this description would be held insufficient, and the contract itself void. McCaleb v. Price, 12 Ala. Rep. 753. The restoration, under those circumstances, would be an act which morality requires, and which the law would compel, and could no more be held to constitute the basis of a consideration, than an agreement to discharge a debtor from the whole debt, in consideration of the payment of a part. If, therefore, the defendants in error, as against McCall, are to be considered as acquiring the right to the lairds by their purchase at sheriff’s sale, it is clear, that the covenant could create no legal obligation on them.

If, however, by the terms of the covenant, the defendants in error, as against McCall, are not to be considered as the true owners of the land, then the only question raised by that portion of the charge we are considering, is, as to the effect of a contract made by a trespasser, for the transfer to a third person, of the possession which he had tortiously acquired. We all agree, that a contract of this character cannot be sustained. We can view it in no other light than as a contract, on the part of the seller, to dispose of that which he has wrongfully acquired, and which he has no right to retain; on the part of the purchaser, it is buying the privilege to continue a trespass. A court of justice will not lend its aid to enforce a contract of this description. Toler v. Armstrong, 11 Wheat. 258; McCaleb v. Price, supra.

That the defendants in error may have known, at the time they entered into the covenant, the manner in which McCall acquired the possession of the land, can have no influence on the validity of the contract.

The charge given by the court, that if the suit of Pryor against McCall was pending at the time the covenant was entered into, such covenant was void, on the ground of maintenance, cannot be sustained. Maintenance is the officious assistance, by money or otherwise, proposed by a third person, to either party to a suit in which he himself has no legal interest, to enable them to prosecute or defend it. Story on Con. § 578. But the doctrine of the common law as to maintenance does not apply to persons who either have any legal interest in the suit promoted by them, or who act under the tona fide belief that they have. Ib. § 579. Conceding that the agreement to indemnify McCall against the damages which the plaintiffs in the suit might recover against him, was assisting him in his defence, still, if the persons rendering the aid acted under the honest belief, that they were interested in the result of the suit, and not for the purpose of fomenting litigation, it would not have been maintenance. Findon v. Parker, 11 Mees. & W. 675; Story on Con. § 579. The covenant does not upon its face show the character of McCall’s possession, and non constat that the defendants in error, in assisting him, may not have been sustaining their own title. In assuming that both the intention and the act, which are necessary to constitute maintenance, were conclusively established by the covenant, the court erred; and as it is impossible to say,[from the record, on which ground the jury determined against the validity of the contract, and as the facts which went to its validity were alone for them to determine, it follows, that the error of the court may have prejudiced the plaintiff.

The judgment must be reversed, and the cause remanded.