# Roberts v. Cooper (61 U.S. 467)

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United States Supreme Court
61 U.S. 467
Roberts v. Cooper
THIS case was brought up, by writ of error, from the Circuit Court of the United States for the district of Michigan.
It was the same case which was before this court at December term, 1855, and is reported in 18 Howard, 173.
A venire de novo having been ordered, the case came up again for trial, on the circuit, in June, 1856. The result was a verdict and judgment in favor of Cooper, the lessor of the plaintiff in the original action.
The bill of exceptions stated that an agreed state of facts, dated Washington city, April 17th, 1854, signed by S. F. Vinton for plaintiff, and Truman Smith for defendant, with all the papers therein referred to and thereto annexed, was read in evidence to the jury, a true copy of which statement, with the papers thereto annexed, is hereto appended.
And there was also put in evidence, and read to the jury, a statement and stipulation, dated June 24th, 1856, and signed by S. F. Vinton for the plaintiff, and T. Romeyn for the defendant, together with the papers therein referred to and attached thereto, a true copy of which statement, with a copy of all the papers thereto annexed, is hereto appended. The plaintiff objected to the reading of the deposition of John Wilson, and the court excluded the same from the jury, to which ruling the defendant excepted.
The defendant then produced and offered to prove a deed of release from Alfred Williams and wife to the Minnesota Mining Company, dated June 20th, 1856, covering the lands in controversy; and further offered to prove, in connection therewith, that at the time when the said Cooper obtained the deed of the premises in controversy from Alfred Williams, the Minnesota Mining Company was in actual and open possession of the same, claiming title under their patent from the United States, and that the said Cooper knew of such claim and occupancy before and at the time of his purchase, and of said conveyance; that he obtained said title from Alfred Williams, he being the naked trustee of John Bacon, and that all the negotiations for the said purchase, and the purchase itself, were had between said Cooper and Bacon, the said Williams acting under the directions and for the benefit of said Bacon, and having or claiming no personal interest in said lands; that said purchase and conveyance were made for the following purpose, namely: That said Cooper should hold the same in trust for a corporation known as the National Mining Company, all of whose stock was held by said John Bacon; and by the conditions of said sale, the said Cooper was to receive, and did receive, with said conveyance, six-tenths of the stock aforesaid, and the said Bacon was to retain, and did retain, four-tenths of said stock. That the said Cooper purchased said stock, and took said conveyance, with a full knowledge of the claims and occupancy of the Minnesota Mining Company, and with the intention of prosecuting the title purchased by him, by legal proceedings in this court against the Minnesota Mining Company, for the benefit of the National Mining Company; and that before said conveyance was delivered to him by said Williams, the said Cooper, in conjunction with the said Bacon, applied to counsel in the city of Detroit, to employ such counsel in the litigation aforesaid, which was to be had with the Minnesota Mining Company-to which evidence the plaintiff objected, and the court excluded the same-to which the defendant excepted.
The bill of exceptions then stated sundry prayers offered by the defendant upon points which were covered by the decision of this court in 18 Howard, and which it is not thought necessary to insert.
The defendant further requested the court to charge the jury, that if, when said Williams conveyed to said Cooper the premises in question, the said Minnesota Mining Company was in actual and open possession of said lands, claiming title thereto under their patent, the said conveyance was void in law against the said company and all claiming under them; which instructions the court refused to give, and to this ruling the defendant excepted.
Upon these exceptions the case came up to this court, and was argued by Mr. Truman Smith and Mr. Reverdy Johnson for the plaintiff in error, and Mr. Vinton for the defendant.
The counsel for the plaintiff in error made the following points:
I. The plaintiff in error, who was the defendant below, should have a rehearing accorded to him on the whole case, irrespective of the former decision.
1. The statute of Michigan gives to the defendant in ejectment an opportunity for a new trial before he is dispossessed. (Mich. Rev. Stat., 492.)
On a revision of the case, the party is to be heard at large, both as to the law and fact. Besides, in this case, the former verdict and the intermediate rulings were all in favor of the defendant below; and therefore it might well happen that he did not (as the fact was) introduce all the evidence at his command, nor take all the available grounds of defence.
2. In this case, the court was obliged to deal with questions arising under the acts of Congress, which treat of a peculiar subject in a new and special manner, and therefore it could not avail itself of the aids of familiar practice and analogous adjudication, usually at command in disposing of cases arising under our land laws, and often throwing much light on the path to satisfactory results. The court, on the former occasion, without knowing, or having any means of knowing, what had been the contemporaneous construction of the act of March 1st, 1847, and what had been the uniform action and course of the Executive in carrying that act into effect, could only look to the terms in which it is conceived; and as it is, to some extent at least, wanting in perspicuity, it is no matter of surprise that a contrariety of opinion should have existed on the bench, or that the court should have arrived at conclusions with some difficulty and hesitation. The new lights alluded to now appearing, on the deposition of the late Commissioner Wilson, and the court being informed that all these lease titles stand on precisely the same footing, it can hardly fail to realize the propriety of giving the act of March 1st a careful reexamination, before it adopts as irreversible a construction which must subvert numerous titles, and involve in ruin millions of capital. The circumstance that there are numerous properties to be deeply affected by the judgment of the court, where the parties interested have no opportunity to be heard, constitutes a strong reason for according to the plaintiff in error a rehearing, without prejudice-thus realizing one of the principal objects of the statute alluded to.
3. On a careful analysis of the record, it will be found to involve-
a. Two questions arising out of objections, made on the former hearing by the present plaintiff in error, to the title of the defendant in error, based on the compact with Michigan for school lands, or rather on the terms in which that compact is expressed; which objections stand on this record precisely as they stood before; and which, having been fully considered and disposed of adversely to the present plaintiff, are not now renewed.
b. A question arising out of an objection made by the same party to the title of the present defendant, based on the laws of the State of Michigan, which will be renewed for the purpose of submitting acts of the Michigan Legislature that escaped notice on the former hearing, and have, it is conceived, a most important bearing on the matter in issue.
c. A question on the construction to be given to the compact between the United States and Michigan, relative to school lands, insisted on by the defendant in error at the former hearing, and constituting an objection to the title of the Minnesota Mining Company, which was, impliedly at least, overruled by the court, and will doubtless be now renewed; therefore the subject must be re-examined by us (the counsel for the plaintiff in error.)
d. A question on the construction to be given to the acts of Congress of March 1st, 1857, and September 26th, 1850, which the defendant in error contended, and which a majority of the court held, to be fatal to the title of the plaintiff in error. This question will be re-examined in connection with new and very material facts, appearing on the record, which change, it is conceived, the whole aspect of the case. It will be insisted, that if there be anything in this objection, neither the Minnesota Mining Company nor the defendant in error have any title to the lands in dispute, that they remain and are public land, and consequently the defendant in error cannot recover.
e. A question on the admissibility of the evidence offered by the plaintiff in error on the trial below, to show that the deed by which the defendant in error derived title was void, by reason of a champertous agreement made by and between him (the defendant in error) and John Bacon, in equity the owner of the property in dispute.
f. A question as to the regularity of the verdict and judgment below, and whether the former should not be set aside, and the latter reversed, for reasons which appear of record.
4. The circumstance that the court was not full on the former occasion, and that there was a divided opinion, in connection with the vast interests at stake, constitute strong reasons why there should be a rehearing without prejudice.
[The second, third, fourth, and sixth points are omitted, as being covered by the decision in 18th Howard. The fifth referred to that part of the bill of exceptions which involved the charge of champerty.]
It is difficult to conceive a more aggravated case of champerty. Hence we insist that the deed from Williams and wife to Cooper, executed at the request of Bacon, in performance of this corrupt agreement on his part, was utterly void; and that therefore the evidence was clearly admissible.
Before the enactment of the revision of 1846, by the Legislature of Michigan, it was held, in conformity with the principles of the common law, by the courts of that State, that a grant of land is inoperative and void, if, at the time of the grant, such land is in the actual possession of another, claiming under a title adverse to the grantee. (1 Doug. Rep., 19, 38; Buckner's Lessee v. Lawrence; ib., 546, 566; Stockton v. Williams, Walker's Ch. Rep., 260; Godfrey v. Desbrow.)
But by the revision of 1846, tit. xiv, ch. 65, sec. 7, the Legislature enacted, that 'no grant or conveyance of land, or interest therein, shall be void, for the reason that, at the time of the execution thereof, such lands shall be in the actual possession of another claiming adversely.' By this provision, the Legislature undoubtedly abolished so much of the common law of the State as inhibited the purchase, under the circumstances named, of disputed titles; but it is submitted that they did not abrogate the common law on the subject of champerty. It is believed that the following remarks, to evince the invalidity of the deed from Williams and wife to Cooper, will not be deemed inappropriate:
1. What is champerty at the common law? 'It is,' says Lord Coke, (in his Com. on Litt. Ins., 368 b,) 'to maintain to have a part of the land, or anything out of the land, or part of the debt, or other thing in plea or suit; and this is campipartia, or champertie. The circumstance that the champertous agreement is a verbal one makes no difference; for Fitz. Nat. Brev., 171, A, says, that 'the writ of champerty lieth where a man, by covenant or agreement, made by writing or by word, 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.'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 recognised 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 an 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.

## Notes

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