Poe v. Davis , 29 Ala. 676 ( 1857 )

CHILTON, C. J.

Although the modern decisions have relaxed the rigor of the law, as declared by the earlier adjudged cases, upon the subject of maintenance and champerty ; yet that doctrine obtains, both in courts of law and equity, and is not confined to cases of purchases by persons occupying some fiduciary or confidential relation to the* vendor. The doctrine is founded on principles of sound public policy, and is designed to check vexatious litigation, and to promote purity and efficiency in the administration of justice. It is true, as remarked by Judge Kent, that the state of society, out of which the doctrine of maintenance originated, does not exist in this country. — 4 Kent, 447, marg. But, in almost every community, there are officious, covetous persons, who, did the law allow it, would speculate in law-suits, — who would watch their opportunity to find persons discouraged by some turn their cause may have taken, and, by promises of indemnity against costs and expenses, purchase for a trifling consideration the entire interest, or a part of the subject-matter of the litigation, in the hope that, by bringing to bear the appliances at their command, they could succeed in the cause, or “ conquer a peace” by driving their adversary into a favorable compromise. 'We may not have among us those “ great men,” spoken of by Lord Coke, (Co. Litt. 214 a,) in consequence of whose purchase of pretended titles “ right might be trodden down, and the weak oppressed” ; but so long as human nature remains as it is, theorise as we may, we must expect to find men, whose cupidity will prompt them to risk a small sum for the prospect of acquiring a much greater; and having incurred the risk, they will not be very scrupulous in the means to attain their end, or in avoiding, harassing and oppressing their opponents, — men who are known never to abandon a case, so long as a court remains to which they can appeal, and who, by thus prolonging litigation, cause the ultimate success of their adversaries, in the superadded fees to counsel, &c., in many cases to be more disastrous than early defeat.

The complainants may not fill this description, — we do not intimate that they do ¡ nevertheless, if their contract could be supported, all the evils which result from maintenance and champerty would follow. They have purchased ah interest in a fiercely litigated law-suit, indemnifying the nominal party against expenses and costs. For this they pay the sum of one hundred dollars ; and the profits of their speculation, as exhibited by their bill, will perhaps exceed one thousand dollars. They may'have acted very discreetly and fairly in the management.of the litigation ; but the law cuts off the temptation to act otherwise, by forbidding such,speculation in the suits of others. "While they may not have perverted the course of justice, it does not follow that others will uot.

We have carefully looked into the cases upon this subject; and, while we readily concede the lawte.be, that distributees may assign their interest or shares in the estate to be distributed, yet if, as in this case, a controversy is .going on as to such shares, and a law-suit is pending as to the validity of the supposed will of the testator or ancestor, upon the determination of which the share assigned will mainly (if not entirely) depend ; and the assignee becomes a party to such controversy and suit, — taking the place of his assignor, releasing him from trouble, and agreeing to indemnify him against the costs and expenses of the suit, — we do not hesitate to say, that it is a species of maintenance, which, according to the better decisions, both ancient and modern, avoids the contract.

In Prosser v. Edwards, 1 Young & Col. 484, Lord Abin-ger takes a very correct view of the doctrine, and maintains, that the assignments of choses in action and equitable interests, which equity recognizes, are such interests as- are recognized by third persons, and not merely by the party insisting on them. “ All our cases,” says he, “ of maintenance and champerty are founded on the principle, that no encouragement should be given to litigation, by the introduction of parties to enforce those rights, which others are not disposed to enforce.” He further insists, that although courts of equity have relaxed the ancient rule that choses in action are not assignable, yet sucli assignment must be something more than a mere right to sue — “ where a valuable consideration has passed, and a party is put in possession of that which he might acquire without litigation, there courts-of equity will allow the assignee to stand in the right of the assignor.” “ Indeed,” says Judge Story, “ it has been laid down as a general rule, that where an equitable interest is assigned, in order to give the assignee a locus standi in judicio, in a court of equity, the party assigning such right must have some substantial possession, and some capability of personal enjoyment, and not a mere naked right to overset a legal instrument, or to maintain a suit.” — 2 Story’s Equity, § 1040 g. The authority tending most strongly to sustain the appellants’ views of this subject, is found in this same volume, (§ 1050,) where the author says, “ a party may purchase by assignment the whole interest of another in a contract, or security, or other property which is in litigation, provided there be nothing in the contract which savors of maintenance ; that is, provided he does not undertake to pay any costs, or make any advances beyond the mere support of the exclusive interest which he has so assigned.” In the case at bar, the assignor, as one of the litigants, was bound with the others for the whole of the costs, against which liability the complainants indemnified.

The cases of Willis v. The Duke of Portland, 3 Vesey, jr., 494 ; Wood v. Downes, 18 Vesey, jr., 125 ; and Stanley v. Jones, 7 Bing; 369, S. C. 20 Eng. C. L. Rep. 165, we think, in principle fully sustain the view we take of this case. So in Harrington and Milligan v. Long, 2 Mylne & Keene, 590, (S. C. 8 Cond. Ch. Rep. 140,) it was held, that while it was not maintenance to purchase an interest which is the subject of a suit, yet, if the "purchaser give an indemnity against all costs ¡that have been or may be incurred by the seller in the prosecution of the suit, the transaction amounts to maintenance. The case of Hartley v. Russell, 2 Sim. & Stu. 244, (1 Cond. Eng. C. Rep. 439,) does not militate against our conclusion. That was, in effect, a dealing with the equity of redemption, charging it with another debt. It is admitted in that case, that the agreement would have been champertous, had it stipulated that the purchaser should prosecute the suit instituted by the seller against the holder of the securities, in consideration of the profits to be derived by the seller from the suit. It cannot be controverted, that a person may assign his equity of redemption in securities held by a third party, even pendente lite, without being subject to the pains of maintenance, (2 Spence’s Eq. 871 ; Hartley v. Russell, supra;) 'but this must be taken, subject to the above exception.. Even such a contract may be champertous.

The American cases fully recognize the doctrine of maintenance and champerty,1 as affecting civil contracts, whatever may be said of them in a criminal point of view. With us, champerty is the unlawful maintenance of a suit, in consideration of some bargain, to have a part of the thing in dispute, or some profit out of it; and covers all transactions and contracts, whether by counsel or others, to have the whole or part of the thing or damages recovered. — Holloway v. Lowe, 7 Porter, 488; 1 Pick. Rep. 416 ; 4 Litt. R. 417 ; 1 Ham. 132 ; 5 John. Ch. Rep. 44; 17 Ala. 206 ; ib. 305 ; 1 Swan’s (Tenu.) Rep. 393.

Some of the recent cases do indeed relax the rules which have heretofore obtained ; but we apprehend, when fully considered, they do not go the length of breaking down the barrier which the wisdom of ages has erected against the perversion of the course of justice, by opening a door for strangers to come in and interfere with suits in which they have no interest, aside from the agreement they may make" to maintain them. The established exceptions which modern decisions have engrafted upon the doctrine, as to the bona-fide assignment for a valuable consideration of equitable interests, we feel bound to respect. But when, as is recited in the assignment before us, to which we may look in support of the defendants’ plea, a protracted litigation has been carried on, and is pending, as to the validity of a will, and one of the contestants becoming uneasy, and willing and desirous of selling out for a small sum ($100) in hand the interest of such person in the will and estate, to be rid and “ released of all the trouble and expense of contesting the will,” — disguise the transaction as we may, it is nothing less than the purchase on speculation of the chances of success in a pending law-suit, — the-seller allowing it to proceed, being indemnified against all expense, cost and trouble ; and the purchasers, (strangers) who thus interfere, bringing into the cause to bear upon the result whatever of power, influence or adroitness they may command. Any one of much experience at the bar need not be informed of the important bearing which such influence and management sometimes have upon the result of trials in pais.

Upon the whole, although contrary to our first impression, we are satisfied the decree of the chancellor upon this aspect of the case, is correct. It is therefore affirmed.

RICE, O. J.

The foregoing opinion, prepared by Chief Justice 0iiiltoN before he resigned his office, is adopted by us as our opinion in this case.