Morgan, Robertson & Co. v. Blewett

Woods, J.,

delivered the opinion of the court.

It is not an open question in this state that a sale of lands by one out of possession is free from champerty. Our statute and the decisions of this court has put this at rest. The English doctrine has ceased to exist with us.

The entire contract between appellants and Claude Blewett shows this state of facts: Claude Blewett was indebted to appellants in the sum of $2,200 or thereabouts, and, to secure this, on March 19, 1891, he executed a trust-deed on the lands embraced in the present litigation in favor of appellauts. Contemporaneously with this, he executed an agreement, sigued by himself and appellants, by which it was stipulated that the appellants should proceed at once to have the lands sold under the trust-deed, and should become the purchasers thereof, and that Claude Blewett should institute and carry on, at his own expense, the necessary proceedings in court to obtain for appellants the possession, of the property. It was further agreed that, as soon as appellants were entitled to possession of the lands by judgment or decree of court, or by compromise or agreement, they would pay to Claude Blewett $7,500, the agreed value of the property and purchase-price of the same, less the $2,200 due by him to appellants and secured by the deed of trust already mentioned. Claude Blewett engaged to warrant the title to the lands thus bai’gained to be sold, and if legal proceedings should demonstrate that he or his vendees were not entitled to the right of possession of the lands, appellants were not to pay the $7,500, purchase-price, and Claude Blewett was to make other provision for the payment of the $2,262 due by him to appellants.

There is absolutely nothing in all this which affects the right of appellants to recover in this proceeding on the evidence they offered. It is a plain case of one largely interested in the result of a suit taking active control of it. Claude Blewett was to recover more than $5,000 if the litigation resulted in his favor or in favor of appellants, and, with full knowledge of his sources and muniments of title, he might, well have relied upon a recovery. He was, besides, the warrantor of the title agreed to be conveyed to and acquired by appellants. Thus situated, it was eminently proper for him to agree to undertake, and actually to undertake, the payment of all costs and expenses incurred in the assertion of his rights by appellants in the courts of the country.

The agreement of Claude Blewett and appellants offered in evidenee by defendant should have been excluded by the court, and a peremptory instruction given for plaintiffs below.

Reversed and remanded.