#### Stephen Swett and Another *versus*Enoch Poor and Another.

The heirs of one deceased conveyed their right to certain lands of their ancestor, which had been sold in his lifetime for taxes, and of which he died disseised, the parties to the conveyance knowing that the title was in dispute; and they made a letter of attorney to the purchasers, empowering them to sue for the lands in the name of the heirs. The purchasers commenced actions against the tenants in possession; and, pending the same, two of the heirs, who were also executors of their ancestor’s will, made a deed to the tenants, pm-porting to convey to them all the right of their testator. The said suits being thus defeated, the said purchasers brought an action against the executors, in nature of an action of deceit; but it was holden, that the transaction amounted to the crime of maintenance, and that no right of action could be founded upon it.

This was a special action of the case, in which the plaintiffs allege that the defendants, on the 12th day of March, 1810, by their deed of that date, in consideration of 1050 dollars paid them by the plaintiffs, released to them all their, the defendants’, right in certain parcels or lots of land in *Bridgeton,*in the county of *Cumberland,*particularly described in the declaration, and also all the land in said *Bridgeton*which descended to them from their late father, *Thomas Poor,*deceased, which had been at any time sold at vendue for taxes, with the appurtenances, &c.; and the said defendants covenanted with the plaintiffs, that neither they, nor any other person claiming under them, should or could, by any means, have or claim the said released premises, or any part or parcel thereof; and on the 28th day of May, 1810, by another deed, the defendants constituted the plaintiffs their attorneys, in the name of the plaintiffs, to commence and prosecute any actions to recover possession of the said lands, and in and by said deed agreed to ratify whatever the plaintiffs, as such attorneys, should do in the premises.

And the plaintiffs, confiding in the said deeds, *com- [ *550 ] menced actions, in the names of the defendants and others, for the recovery of possession of certain of the said lots or parcels of land, and expended large sums of money in procuring evidence and in prosecuting said actions; and should have recovered possession of the said lots; but the defendants, contriving to injure and defraud the plaintiffs in that behalf, on the 28th of September, 1811, by their deed, in their capacity of executors of the last will of their said father, *Thomas Poor,*conveyed all the rights of their said father in the same lots to *Thomas Robinson*and others, and their heirs and assigns; and by means thereof defeated the actions aforesaid, barred the plaintiffs from recovering possession of the said lots of land, and subjected them to the payment of large sums of *492money, by means whereof they deceived the plaintiffs, and defraud ed them of divers large sums of money.

The action was submitted to the decision of the Court upon th* following facts: —

The defendants, with others, heirs at law of *Thomas*Poor, de ceased, on the 12th of March, 1810, in consideration of 250 dol lors, by their deed conveyed to the plaintiffs all their right to certain lands in *Bridgeton,*which descended to them from the said *Thomas,*and which had been sold at vendue for taxes, being about 1000 acres, the parties then knowing that the title to said lands was disputed. The said *Thomas*was disseised thereof in his lifetime, and continued disseised until his death, at which time, and until the making of said deed, *Thomas Robinson,*and sundry others named,, were in possession, claiming by an adverse title. The plaintiffs when they purchased, expected to have a number of lawsuits with the persons in possession, but had no doubt of recovering, and ex pected a profit of 3000 or 4000 dollars by their bargain.

The said *Thomas Poor,*by his last will, ordered all his outlands to be sold by his executors, and the money thence arising to be appropriated to the payment of his debts, and the remainder, if any, to be divided among certain of his children; and made the defendants his executors.

[*551 ] * The defendants, with others, heirs of the said

*Thomas Poor,*made a letter of attorney, under their hands and seals, dated March 28, 1810, empowering the plaintiff# to sue for the possession of the said lands in the names of the con stituents; and the plaintiffs executed a bond in the penal sum of 2000 dollars, to indemnify the defendants and the other constituents from all costs which might arise in such suits.

The plaintiffs commenced suits, in the names of their said constituents, against the persons in possession of the said lands; and pending the same suits, the defendants made a deed to the tenants in possession, purporting to convey to them, in their said capacity of executors, and in virtue of the said will, all the right of which the said testator died seised in the said lands.

The said tenants in possession claim the said lands under a sale at vendue for taxes, the validity of which title hath not been settled ; and they also defended in virtue of said deed from the defendants as executors ; and in said suits, it was determined by this Court that the said testator, not being in possession, could not devise the said lands, nor the right to recover them; and that the said executors had no right to convey in their said capacity; but that their said deed operated as a release of the personal right of the *493said executors, and thereby the said actions were defeated, and the tenants recovered their costs.

If, upon the facts stated, the Court should be of opinion that the action was supported, it was agreed that the plaintiffs’ damages should be assessed by a jury, upon such principles as the Court should direct; otherwise, the plaintiffs were to become nonsuit, with costs for the defendants.

The cause was argued at the last November term in this county

*Pickering*and *Varnum,*for the plaintiffs.

The general principle of law is well known, that a deed may be valid between the parties, although void as to other persons; and this has been repeatedly decided in cases of indisputable * mainten- [ * 552 ] anee. In the case of *Jackson*vs. *Demont,*(1) the Court say that, “ even admitting the sale of lands to have been an act of maintenance, yet the deed was effectual, as between the parties to it; ” and that “ it seems to be a principle, which runs through all the books, that a feoffment upon maintenance or champerty is good as between the feoffor and feoffee, and is only void as against him who hath right.” And in the cases cited by the Court in support of that position, although it is said by *Martin,*J., “ where a disseisor makes a feoffment for maintenance, and takes the profits, the feoffment is void to all intents by the statute,” (1 *R.*2, c. 9) yet it is held by all the other justices that it is not void between the feoffor and feoffee. (2) This doctrine is also laid down in the strongest terms in the cases there cited from 27 *H.*8, *pi.*23, *b,*24, *a.*(3) So that even if there has been maintenance in this case, which, however, the plaintiffs do not admit, yet the bargain, as between the parties, is not for that reason void.

Nor ought the defendants, in any event, to be permitted to avail themselves of that circumstance; since it appears that they are equally involved with the plaintiffs in the supposed guilt of the transaction. For a party is not to avoid a bargain, made with a full knowledge of all the facts. In this case, the defendants would avoid their first bargain to make a more advantageous one with the tenants in possession. The mischief of countenancing parties in defeating their contracts, and making new ones at pleasure, is obvious.

It is believed that the Court will not, in this action, incidentally punish a party for a supposed offence, for which he could be answerable only upon indictment. (4)

If it be objected that the action is wrongly conceived, and that it should have been covenant upon the deed, it is answered that the *494deeds referred to in the declaration are only stated as matter of inducement, and that the gist of the action is the tort or misfea sanee done by the defendants; and in such case, the [ * 553 ] party has his election to proceed in * covenant, or in case for the tort. (5) The latter form was adopted to avoid a multiplicity of suits; and it is believed to be the only form of action, in which the whole merits of this case could be tried.

*Putnam*for the defendants.

(1)

9 *Johns. Rep.*55.

(2)

*Bro. Abr.,*title *Feoffment,*19.

(3)

*Cro. Eliz.*445. — *Hawk. P. C.*B, 1, c. 86, § 3.

(4)

*Co. Lit.*368, *b.*

(5)

 2 *W. Black. Rep.*1112.—2 *New. Rep.*148. —4 *Esp. Rep.*59.

The opinion of the Court was delivered at this term by

Parker, C. J.

This action is altogether of a new impression. It is an attempt, instead of holding the defendants to their cove nants in the deed which is mentioned in the declaration, to charge them with a tortious interference with the title intended to be conveyed by the deed, subsequent to the making of it. One of the covenants seems adequate to any remedy for the wrong alleged in the declaration ; and although, if there were no such covenant, an action upon the case might lie, for attempting to intercept a title intended to be passed by deed, yet, where the parties have stipulated in a contract, there seems to be no reason for encouraging an action not founded upon the contract.

But we waive all further consideration upon this point; because, after the whole view of the case, as exhibited in the state of facts agreed by the parties, we are satisfied that this action cannot be sustained.

The history of the transaction displays as gross an act of maintenance as was ever practised. The plaintiffs, knowing that certain lands were in the actual occupation of sundry persons who claimed to hold the same by title, and that this possession had continued for nearly thirty years, *(a)***but believing that the defendants had a paramount, although dormant title, owing to some defect supposed to exist in the title of the occupants, applied to the defendants to purchase their claim and interest, they not being aware that they had any available interest, and bargain with them for a deed, and for their power to commence suits for the purpose of removing the occupants. Having commenced such suits, and put the occupants to great anxiety and expense, they find, [ * 554 ] * before they arrive at a successful termination of their project, that the defendants, influenced perhaps by a sense of justice to the tenants, had thrown a barrier in the way of their recovery. They bring the present action, to reimburse to themselves the costs and charges to which their unjust speculation had subjected them; founding their application to the laws of their *495country upon an offence committed by themselves against those laws.

No principle is more clear, or more reasonable, than that a man cannot build up a right, in a court of justice, upon an illegal or immoral act of his own. The bargain made by the plaintiffs undoubtedly constitutes the offence of maintenance, which is odious to the laws, and may be punished on indictment. It is an offence at common law; and although instances of prosecution for it in this country may be rare, it is because the offence is rarely discovered, not because it is overlooked by our laws. The statute of 32 *H.*8, c. 9, against buying and selling pretended titles, is only an affirmance of the common law; and there is no offence more deserving of animadversion. For if successfully practised, its tendency is to disturb the quiet of neighborhoods, and produce distress to people who, but for such intermeddlers, would be left in the quiet enjoyment of their possessions.

In the case before us, both plaintiffs and defendants knew the state of the title, and of the possession, when the conveyance was made. Such knowledge may be necessary to make.the transaction criminal. Cases may exist where a non-resident proprietor conveys when actually disseised, he being ignorant, as well as the purchaser, of the disseisin ; and a conveyance so made may be innocent. But in the present case we have no doubt it was illegal, and no action can therefore grow out of it. According to the agreement of the parties, the plaintiffs must be called, (a)

*Plaintiffs nonsuit.*

(a)

 See the facts in the case of *Poor & Al.*vs. Robinson, ante, vol. x. p. 131.

(a)

*Brinley*vs. *Whiting,*5 *Pick.*348. — *Cleverly*vs. *Whitney, 7 Pick.*36. — *Somes*vs. *Skinner,*3 *Pick.*52.— *Bowers*vs. *Porter,*4 *Mass. Rep.*198.— *Wolcott & Al.*vs. *Knights,*6 *Mass. Rep.*418. — *Everenden*vs. *Beaumont, 7 Mass. Rep 76.—Prescott vs Heard,*10 *Mass. Rep.*60. — *Warren*vs. *Childs,*ante, 222.