#### Martin vs. Veeder.

*Contract construed*— Dependent *covenants*— Champerty.

1. V., in consideration of one dollar, and also of the covenants of M. in the same instrument, covenanted to convey a specified/part of a certainjract of land to which he claimed a right of pre-emption, as soon as he should have perfected his entry of said land at the state land office; and M. (who was an attorney at law), in consideration of said agreement, covenanted on his part “ to render all necessary services in procuring the allowance” of V.’s claim to enter the land. *Held,*that M. was not entitled to a performance of V.’s covenant, without showing a prior substantial performance of his own.

2. When the contract was executed, there was no law allowing an appeal from the decision of the register of said land office upon an application to enter land. Subsequently an act was passed (ch. 1, Laws of 1853) authorizing such an appeal to the circuit courts of the state. M. having procured a decision of the register allowing V. to enter the land, an appeal was taken, and the question *467litigated in the circuit and supreme courts. *Held,*that the contract having been entered into with knowledge of the power of the legislature to provide for such an appeal, M. could not enforce the execution of a deed to him from Y. (after the latter had established his right and obtained a patent of the land),, without showing that he had rendered the necessary services for V. in conducting such litigation.

3. It is doubtful whether M. was bound to pay the purchase price of the land on V. perfecting the entry.

4. whether the contract above stated was not *chwnvpei'tous, quiere.*

APPEAL from tbe Circuit Court for *Juneau*County.

Tbe defendant, *Yeeder,*on tbe 20tb of November, 1852, was, and for a long time previous bad been, in possession and occupation of a tract of land in Columbia county in this state; wbicb was a part of tbe land granted to tbe state by an act of Congress in 1846 to aid in tbe improvement of tbe Eox and Wisconsin rivers, and accepted by tbe state by an act approved August 8, 1848. *Yeeder*bad filed witb tbe register of tbe state land office, established at Osbkosb for tbe sale of tbe land granted in aid of said improvement, a pre-emption claim to said tract. On said 20tbof November, 1852, be and tbe plaintiff entered into a contract under seal, whereby tbe former, “in consideration of one dollar, as also of tbe covenants herein mentioned to be performed by tbe party of tbe second part,” agrees to convey to tbe latter by deed, one undivided third part of said tract, *“*as soon as said party of tbe first part shall have perfected bis entry thereof at tbe state land office,” * * * and tbe plaintiff “ in consideration of tbe covenants aforesaid, agrees on bis part to render all necessary services in procuring tbe allowance of tbe claim of tbe party of tbe first part to enter said land, free and clear of any payment or recompense other than the covenant to be performed as aforesaid by tbe party of tbe first part.”

Afterwards one Joshua J. Guppy (claiming to act, as county judge of Columbia county, in trust for tbe settlers on said tract), and also one Nancy Mars, respectively, made claim to enter said land. After a bearing of these several claims before tbe register of said land office, be rendered a decision in favor of *468
      *Veeder.*Tbe plaintiff gaye bis personal attention to tbe prosecution of tbe defendant’s claim before tbe register, and employed counsel to conduct tbe same, expending tberefor $660. When tbe register’s decision was made, *Veeder*paid tbe preemption price of tbe land, and bad it entered in bis name; and tbe complaint alleges that be made such payment “ without any notice to tbe plaintiff, and witb tbe fraudulent yiew of defeating bis right under tbe contract * * well knowing that tbe plaintiff .then was and always bad been ready and willing to enter said land for said *Veeder,*and to pay said sum of money; and also well knowing that such payment was not necessary under tbe law, until after tbe adjudication of tbe appellate tribunal;” and “ that tbe plaintiff is now and always has been ready and willing to pay said sum for tbe entry of said lands.” Tbe other two contestants appealed from tbe register’s decision to tbe circuit court of Columbia county, in pursuance of tbe provisions of ch. 1, Laws of 1853. Tbe court baying rendered a judgment adverse to Feeder, be appealed to tbe supreme court, where the judgment was reversed. Tbe judge of tbe circuit court having subsequently refused to make an order requiring tbe register of tbe state land office to issue to *Veeder*tbe usual certificate of entry for tbe land in question, tbe latter applied to tbe supreme court and obtained a *mandamus*requiring said judge to make such an order, and tbe writ having been obeyed, tbe certificate was issued, and *Veeder*subsequently obtained from tbe state a patent for tbe land. Tbe plaintiff afterwards demanded of *Veeder*a deed of one third of said tract, but tbe latter refused to execute it, on tbe ground that tbe plaintiff bad not fulfilled bis part of tbe above described contract; and this action was brought to compel tbe execution of such a deed. Two other persons beside *Veeder*are made defendants, for reasons which need not be stated here.

As to tbe proceedings in prosecution of tbe *Veeder*claim subsequently to the decision of tbe register of tbe land office, tbe plaintiff, as a witness in bis own behalf, testified as follows: *469
      *“*"When the entry was perfected, in March, 1863, I supposed my obligation to render my personal services in the cause was fully complied with. At the time of my making the contract, there was no law authorizing an appeal from the land office, to my knowledge. Subsequently, when an appeal was taken to the circuit court, I employed Mr. Buttriek, a lawyer of Oshkosh, to attend to my interest in the case in that court, for which I paid him $125. On appeal to the supreme court, I employed James S. Brown, Esq., of Milwaukee, to attend to my interest there. I employed Mr. Brown at Milwaukee just before the term of the supreme *court;*it might have been after the commencement of the term.” It appeared that other counsel had been employed by *Veeder,*and Mr. Brown took no part in the argument. Mr. Buttriek, for the plaintiff, testifies that he appeared as attorney for *Veeder*in the circuit court. *“*After the appeal [from the register] was taken, *Martin*came to me at Oshkosh, where I then resided, and desired me to go to Portage City, where said circuit court was then in session, and procure, if possible, a continuance of the cause until the next term; if not to give it such attention as I was able. I accordingly went to Portage, and stopped at the house kept by the defendant *Veeder.*I made the application for continuance, which was denied. * * *Mr. Veeder*wished me to remain at Portage and attend the argument of the case, and I did so. * * The plaintiff paid me $125 for my fees and expenses. I received no money from *Mr. Veeder,*but I believe he charged me no board while I was staying at his house.” For the defendant, Alva Stewart, Esq., testified that he was a member of the firm of Pulling & Stewart, attorneys at law, at Portage City, in 1853 and the spring of 1854. “ Some time after the commencement of the term of the circuit court for Columbia county, *Mr. Veeder*employed us to attend to the case of the appeal from the decision of the state land office in his case. He stated to us that he expected *Mr. Martin*there to attend to it, but he had not come, and the case was about to be reached. *470I think I or Mr. Pulling went down to tbe court — this was in tbe afternoon — and stated tbe circumstances to the court, and got tbe cause put over to tbe next morning. We went to work tbat afternoon to prepare tbe case. *Mr. Yeeder*also employed Major Clark of Baraboo to assist us. Tbat evening Mr. But-trick came. He said be bad been sent there by *Mr. Martin*to look after tbe case, and tbat be came for tbe purpose of procuring a continuance or making a motion to dismiss tbe appeal, I don’t remember wbicb. He said be bad no time to prepare tbe case; be bad just been, employed. Mr. Pulling did tbe principal labor tbat nigbt, preparing tbe case so far as our firm was concerned. I left him there at a late hour at nigbt. Mr. Buttrick was there in tbe morning, but I do’nt know whether be was there when I left. Tbe next morning a motion was made to dismiss tbe appeal, and it was overruled. The cause then came up for bearing, and Mr. Buttrick and Mr. Pulling took part in the argument in behalf *Mr. Yeeder.*After the decision of the circuit court, Mr. Buttrick went home. * * I made up tbe papers for the appeal. * * Neither *Mr. Martin*nor any one rejeresenting him came there, to my knowledge. *Mr. Yeeder*procured tbe bondsmen on the appeal. The matter then ran along until tbe last day for causing a return to be made under tbe rule of court. I went to the clerk’s office, and found tbat be bad not made any return. I informed *Mr.*Yeeder, and be went to tbe clerk’s office and paid tbe costs. I assisted tbe clerk in putting tbe papers in shape to go up, and *Mr. Yeeder*started with them to Madison, just at nigbt. Before tbe term of tbe supreme court, a case had to be made and served, under tbe rule, and be employed Judge Or-ton to assist in the matter. Judge Orton prepared the case and sent it up to us, and we served it. Mr. Pulling and Mr. Orton argued the case in the supreme court. About tbat time I quit the practice, and Mr. Pulling continued in the case. I heard the settlement between Mr. Pulling and *Mr. Yeeder*for the services of tbe former in the case, and for the services in a *471motion for re-argument of the case in the supreme court; for attending the case after it was remanded from the supreme court to the circuit court; and for proceedings against the judge of that court by *mandamus.*The sum finally agreed on upon that settlement was $5500.” *Mr. Veedor,*as a witness in his own behalf, testified as follows: “After the decision of the circuit court, I heard nothing from *Mr. Martin*till the case was finally disposed of in the supreme court. I attended at the argument in the supreme court, and did not see anything of him, or any one to represent him. * * He did not appear when the case was remanded to the circuit court for an order on the register, and I heard nothing from him. He never had anything to do with the *mandamus*case, that I know of.” It appeared also from the evidence that the plaintiff had never offered to pay to *Veed&r*the pinchase money paid by him on entering the land in question, nor any part of the expenses incurred by him in the litigation in the circuit and supreme courts.

The circuit judge, after finding the facts substantially as above stated, held that “the plaintiff was only bound to defray all the expenses of establishing the defendant’s right to the land before the register of the state land office, and was not bound to litigate the case in the supreme and circuit courts ;” that no payment or tender of the purchase money by the plaintiff had been shown; and that the plaintiff was therefore not entitled to a performance of the covenant on defendant’s part; and a judgment of dismissal was therefore rendered, from which the plaintiff appealed.

*Morgan L.*Martin, in person:

1. The covenants of the parties were independent, performance on the one part not being a condition precedent, unless it was essential to enable the other party to perform. Covenants, unlike conditions, afford no ground of forfeiture. 1 Hilliard, 371; 1 A. K Marsh., 220; 11 Johns., 122; 20 N. Y., 463 ; 29 Barb., 658; 11 Pick., 151. 2. The services were rendered, *472and tbe right of entry established. From payment for the land the plaintiff was prevented or excused by the act of the defendant. After payment had been made, defendant treated the contract as subsisting by calling on the plaintiff to render service in the circuit and supreme courts, which was not called for by the terms of the contract. By these acts defendant waived all claim for forfeiture of the contract, even under the supposition that plaintiff was bound to pay the purchase price of the land, and that this was a condition precedent to fulfillment on the part of the defendant. 14 Barb., 638 ; 20 N. Y., 199; 24 Barb., 174, 666; Will., 279, 295. He could only claim that compensation be made for the money paid by him, and that the sum advanced constitute a lien on the land.

*Alva*Stewart, for respondent.

Cole, J.

The circuit court dismissed the complaint because the plaintiff did not show a full performance of the contract on his part, as it appeared that he had not paid the purchase money for the land. There would not seem to be room to doubt that the plaintiff was bound to show a substantial compliance with the terms of the contract on his part, in order to entitle himself to a specific performance of it on the part of the defendant. For the covenants contained in the agreement are obviously dependent in such a sense that a performance of them by the defendant depends upon the prior performance by the plaintiff; and therefore, if the contract imposed upon the plaintiff the duty of paying for the entry of the land, he might be required to show a performance, perhaps, in this particular, or excuse his default, before he should have a conveyance of the land. I am not, however, by any means clear that the agreement imposed upon the plaintiff the obligation of paying for the land, although this seems to be the construction placed upon the contract by the plaintiff himself in the complaint. It is true, the language of the contract is not very explicit upon this point, but the most obvious intention of the parties, as *473gathered from tbe whole instrument, is that no such duty was imposed upon the plaintiff. At the same time the evidence shows most conclusively to my mind, that the plaintiff did not perform the contract in other material respects, as he had undertaken and agreed to perform, and therefore is not entitled to a performance of the contract on the part of the defendant. As I understand the instrument, the defendant undertook and agreed to convey to the plaintiff, by a good and sufficient deed, a one-third part of the premises mentioned in the complaint, as soon as his entry was perfected, solely upon the condition that the plaintiff would on his part render all necessary services in procuring the allowance of the entry and the vesting of the title in the defendant. The plaintiff was a lawyer, of eminence in his profession, and it was evidently the intention of the parties that he should give his personal attention to all litigation and business incident to establishing the rights of the defendant, as a condition to having a conveyance of his share of the land. It is claimed that the contract did not impose upon the plaintiff the duty of attending to the litigation growing out of the defendant’s contested pre-emption right in the circuit and supreme courts, but only the duty of attending to the matter before the state land office. To my mind this interpretation of the contract is clearly inadmissible. The defendant agreed to convey when his entry at the land office should be perfected, and the plaintiff undertook to render all necessary services in perfecting this entry. Whatever litigation might arise in perfecting the title in the defendant, the plaintiff was to attend to personally. The proofs show, beyond all controversy, that he did not do this, but that the defendant, to protect and secure his rights, was compelled to employ other attorneys, at an expense of several thousand dollars, to attend to his suit in the circuit and supreme courts. And this litigation was all necessary to perfect the entry of the defendant; for the law (chap. 1, Laws of 1853) expressly provided, in case of an appeal under that act, that the register should issue no certificate of entry to *474the successful claimant until tbe decision of tbe court should be made and certified to tbe register. Sec. 1. By tbe agreement, therefore, tbe plaintiff was as much bound to attend to this litigation in tbe courts as be was to attend to tbe contested claim before tbe land officer. Eor tbe defendant’s *right to*enter tbe land was not perfect until tbe final decision of tbe case in tbe supreme court.

It is suggested, however, that tbe plaintiff was not bound to attend to tbe litigation of this claim in tbe courts, because tbe law allowing ajojaeals from tbe decision of tbe register in cases of conflicting pre-emption claims was not in force when tbe contract was made. Therefore, it is said, no such litigation could have been in tbe contemplation of tbe parties. But it is evident tbe parties must be presumed to have entered into tbe contract with a full understanding of tbe power of tbe legislature to make such changes in tbe law in regard to settling conflicting preemption claims to lands granted tbe state, as it might deem necessary. Doubtless tbe legislature might have transferred this whole class of claims to tbe courts, giving tbe register no control over them, except tbe mere ministerial duty of issuing tbe certificate to tbe person who, tbe court should say, was entitled, to it. If tbe legislature bad made this change in tbe law, would it be seriously insisted that tbe plaintiff bad performed bis contract by attending to tbe issuing of tbe certificate by tbe register ? Probably not. And yet there would be tbe same reason for saying that tbe plaintiff bad fully performed bis contract in tbe case supposed, as there is for bolding that be was not bound to attend to tbe litigation of tbe contested pre-emption claim in tbe courts because tbe law granting an appeal in such a case from tbe decision of tbe register was not in force when tbe contract was made. I am constrained to bold, therefore, that it abundantly appears from tbe evidence, that tbe plaintiff failed to perform bis side of tbe contract, and hence cannot insist upon a specific performance of tbe contract on tbe part of *475the defendant. Mr. Justice DowNER, however, while entertaining some doubts upon this ground, thinks the judgment should be affirmed because the contract was champertous. The common law in regard to champerty, with such qualifications as the modern authorities have established, has been held to be in force in this state. *Barker v. Barker,*14 Wis., 131. The reason and policy of the rule of the common law certainly condemn this agreement as being champertous. It is true the matter or thing in dispute was a contested pre-emption right then pending before a state land office ; but an agreement to prosecute this right until it was allowed, and receive a one-third part of the land as a reward for the services, would seem to be a palpable violation of the principles of law in reference to champerty and maintenance. If the reason of the rule is, that persons having no interest in the matter in dispute shall not contract for an interest upon condition of carrying on the suit or controversy, because to do so encourages strife and litigation, then, as already observed, the policy of the law applies as well to a contested pre-emption right as to a strict action at law. And therefore my decided impression is, that this agreement is void for champerty. But I have not examined that question as fully as I should have done were I not entirely clear that the plaintiff has failed to show that he has performed the contract on Ms part so as to entitle himself to a specific performance of it from a court of equity.

*By the Oourt.*— The judgment of the circuit court is affirmed.