#### Tomb, *qui*tam, &c. *against*Sherwood.

Where a person undertakes to sell land which is he'd adversely to him it is immaterial whether bis title or claim were goou Or had, and the parties to such sale< will b^equally within the statute against champerty and maintenance

So, where a person obtained n certificate from ■ the surveyor-generalof the state, that he purchased a lot of land, aud the land was then sold under an execution against him. and he, afterwards, assigned the - certificate *¡*it was held that the assignee was liable to the penalty of the statute.

And the value to he recovered is not only that of the land actually occupied and cultivated, but of thewhrile lot of which it is parcel, and which is claimed iu connection with it.

THIS was an action of debt brought against the defendant on the 8th section "of the act *“ to prevent and punish champerty and*maintenance(1 *N.R.L.*172.,) for buying the pretended right, or title, of one *Mooney,*to the south half of lot No. 50, in the late *Oneida*reservation, in *Sullivan,*in the county of *Madison.*The cause was tried before Mr. J. *Van Mess,*at the *Madison*circuit, in *July,*1815.

A certificate of sale, dated the 7th of *August,*1806, was issued by the *surveyor-general*of the state to Mooney, which stated that he had purchased a piece of land in the *town of Sullivan,*distinguished as lot number *fifty,*in the northwesterly part -of the late *Oneida reservation,■*containing 231 acres; on which lot 125 dollars were paid, the sum of 875 dollars remaining due. This certificate *Mooney,*for the consideration of 50 dollars, assigned to the defendant, in fee, on the 17th of *April,*1814. The south half of the said lot was levied "upon" and sqld, under a judgment and execution against *Mooney,*to one *Job Williams,*and the deed from the sheriff was dated the 5th of *Movember,*1807. *Williams*permitted *Mooney*to remain, in possession after the sale, for about one year, on his promising to surrender the possession to *Williams,*and deliver him the certificate. He delivered the possession, but retained the certiiicate. On the 4th of *September,*1810, *Williams*conveyed to one *Foot,*in fee, and *Foot*conveyed to the plaintiff, and *Samuel,*his son, by déed, which was not dated, but which was proved to have'been delivered in the fall of 1813. After the plaintiff’s purchase, the defendant, by threats to dispossess the plaintiff, obtained from him a judgment bond for 200 dollars, as a con, sidetation for relinquishing the certificate to him, and the like sum from one *Peck,*the owner of the north half of the lot. It was provea that the defendant, at the time he took the assignment from *Mooney,*was fully, aware of the nature of his title. There were about 20 acres" of the land in question im- , provedr The house and improved land were worth 400 dollars ; the value of the south half of the lot was 1.000 dollars.

*290The jury found a’ verdict for’ the.'plaintiff, subject to the opinion of the court as to. his fight to recover, and as to the amount of the recovery—whether the verdict 'should be , for 40Q of 1,000 dollars. ■ ■ .

Storrs, for the plaintiff,

contended, that .the purchase made by. the defendant was of-a pretended right or title, within the-statufe* The act. of í’hé 6th of *April,*18.03,* required the survey-01’"general to give:.to each purchaser a certificate, containing a. 'description'-of the' land purchased,, and the,price; on the pro-, duction of which, with an endorsement ,of the payment of, the purchase money,, he was entitled to. a. patent: This is, a:promise, grant, or covenant, to have a right or title,” which the act to Prevent champerty and maintenance† prohibits any pefson out.of possession from buying or selling, It is not necessary that it should b,e a fee. The statute extends to any right or title.‡ A teas© by a person having a. mere coyenant for a eonr. .veyance, is within, the act.§*-g - 1 t-*-a

Randall,. contra,

contended,' that If the defendant had been, guilty of any'offence, it-.was. against, the first section of the .act against maintenance. The certificate of. the,surveyor-general was a *ine.ve. chose in'.action,*and, the purchase of it was not buying any.right or title. It cdnveys’'nothings, It, is-a m.er© engagement .that, on the performance,, of .certain things, .the ■person-shall be. entitled to demand a patent. : Th,e.cc)mmissionefs of the land office alone-could’give any title ; and, by the 9th sec* tion of the’ act, if the purchaser failed in completing the pay-, ménts, all previous sums paid are forfeited, ándithe land may again be sold. A,bond,or covenant,fonaconveyance,,does.not; give a right of entry on the land.ǁ In *England^*there areno cases in, which the action has been- sustained, unless where the purchase has., been such as,, *prima facie,*conyfejfed. the *title¿*The. certificate was not under seal,- find could coafoy ho title. Every right includes-a title.** . Here . Was a mertl assignment of the certificate.

Again, as to the amount of the recovery. The plaintiff was-' proved to be in possession of about 20 acres of- improved land.. The residue Was vacant. The defendant could be liable, only for lands he thew to be in. the possession of another, of for .such land as was improvednot for. vacant land,, or, suck as. was,itt. *291the constructive possession of the plaintiff. The conveyance of a title to land held adversely, is void only as to the land possessed adversely, and is good as to the residue; and the defendant, in an action on the statute for buying- a pretended title, is answerable for no more than the value of the land in actual possession.*

Storrs, in reply,

said, that, by “ title,” was not meant a fee. It is the means by which the party is to acquire the possession. It includes any right or interest whatever. Possession of a • part, with a claim to the whole of a tract of land, is a sufficient adverse possession of the whole.†

*

 Sess. *26. ch. 106. s. 7. vol. 3. Laws, 365. Webster's ed.*

†

 1 N. R. L. 172 sess. 24. ch. 27. s3 8.

‡

 2 hawk. P. *C. 420. b. 1. ch. 86. s. 12. 4 o. 26. . Litt.*369.

§

 15 *Vin Ab.*149. *Maint.*(b.) pl. 7. p. 157. (E.) pl. 25.

ǁ

9 *Johns. Rep.*35. 331.

**

*Co.*Litt. 315. b.

*

1 *Johns. Rep.*346. 5 *Johns. Rep.*500, 501. 7 *Johns.*Rep. 281.

†

*1*Caines’ Rep 84. 358.

Van Ness, J.

The plaintiff was in possession of the land, under a deed in fee given upon a valuable consideration, occu-. pying and improving it as his own; and while he was thus in possession, and, which is equally important, while *Mooney*was out of possession, the defendant purchased the equitable interest claimed by *Mooney*under the surveyor-general’s certificate. It is material to observe, that, long before the defendant’s purchase, *Mooney*voluntarily surrendered the possession of the land to *Williams,*under whom the plaintiff claims, after having been *Williams’s*tenant for a year. Two questions arise upon the merits of this case. 1st. Whether the purchase by the defendant was of a pretended right or title within the statute ; and, 2nd. If it is, what shall be the amount of the recovery, 400 dollars, or 1,000 dollars ? -

1st. The words of the statute are, that no person shall buy or sell any *pretended right or title,*or make, or take, any promise, grant, or covenant, to have *any right or title*of any person to any lands, &c. Under this statute, it is well settled that it is immaterial whether the right or title purchased, or sold, be good or bad; for if it be ever so good, if the vendor is not.in possession, nothing passes by the deed, and the case comes within the statute. It has also been held, that the sale of a copyhold estate, or giving a lease for years, when the vendor or lessor is not in possession, is within the- statute. Lord *Coke*says, 4f the words of the statute be, *any pretendedright,*and, therefore, a lease for years is within the statute; for the statute saith not *the right,*but *any right,*and the offender shall forfeit the whole value of the land.”’ And again: “ Also the, statute speaks of *any*right or title to any *292land. A customary.right, or a pretence thereof to lands hold'en by 'copy,, is within this, statute^’ (Co. LittJ369. á. and b.) The statute intended to prohibit the-sale of pretended rights, by which the possession of another-might be disturbed. And- it ¡appears'-tame -that a purchase like the present is fully within the meaning and, spirit, as it indisputably is" within the words of, the act« The defendant, by getting possession of the surveyor-general’s certificate, and the assignment of it by *Mooney,*had. it in his power, perhaps, to defeat th'e plain tiff’s, right, or, at all events, to. give him great -trouble and vexation in perfecting his title» It was a dormant and abandoned claim of *Mooney,*which the defendant bought .for the express purpose of harassing the plaintiff, and to disturb his right and possession. The case Shows,'.that, by virtue of this very, purchase the.defendant extort* éd a considerable sum, of money from the plaintiff by threatening to dispossess him. , ,

' '2d- Wé have more than once decided that when.a persbn enter* ed, and was in possession, under an agreement- to phrchase-aii: entire lot or piece'of land, and cultivated and improved a part,, claiming the whole as his own, that he was to-be deemed to be in the actual possession of the whole, and that a deed,given by a stranger, though he had a good title, was inoperative. The assignment in this case is of> the whole lot described in the sur* yeyor-general’s certificate,' and there is no. pretence for saying that *Mooney*Was in possession of any part of it. He had,-in’ fact,, actually surrendered’ the possession *m Williams,*long be*, fore the defendant, purchased from him his pretended; right». The’ defendant was fully apprised of ¡the actual, situation of the. lot, ¿.ild bought ■ it with full knowledge of the plaintiff ’s . sights. I do not see,, therefore, upon what;ground it can, be contended that the defendant is not liable for the value of the - entire Jot, if he is liable at all. I am of opinion, therefore, fhat the- plaintiff is entitled to judgment for 1,000 dollars, being tjje value of the whole lot, as found by the jury,

Thompson, Ch. J.? and Yates, J„ were of the same opinion,

Spenceb, J„

dissented, observing, that the case presented iacts establishing a fraud, rathér than an offence against the. statute. It is conceded, that be the title ever-so valid, if thé lands lb.e held adversely- to that, title, it wrpuld; b,e champerty to pur*. *293chase such valid title; but if the title purchased be valid, and the land is held under, or subservient to, that title, it would not be champerty. It is held not to be sufficient to show that the seller had not been in possession a year before, without averring that he had a pretended right or title, because that is the point of the action. (2 *Hawk.*b. 1. ch. 86. s. 10.)

The intent of the statute was to prevent any person, having a disputed title, from conveying it-to strangers. *(Bac. Abr. Maintenance,*E.)

Here we are warranted in saying, that the plaintiff knew that the lands had been taken up by *Mooney,*under the surveyor-general’s certificate, and that it was sold under the *fi. fa.*against *Mooney,*in subserviency to that right; and we must say, that the plaintiff acquired, by his purchase, the bare right of possession, subject to the right of the state. This is, then, not a case within the purview of the statute ; the right of the state was not a pretended right; for the plaintiff held under the state without any title, and not having acquired by his purchase a right to grant.

Again, the defendant taking an assignment of the surveyor-general’s certificate was not taking a *promise, grant, or*cove*nant to have any right or title;*the operation of law might be, that he would obtain a grant by the production of the certificate and the payment of the price of the land, yet it- was not in itself a *promise, grant, or covenant,*that he should have the land. This is a penal statute, and to bring the defendant within it, he must be brought within the very terms. I cannot view the case as within either branch of the statute, and, therefore,., think the defendant is entitled to judgment.

*Platt,*J., was of the same opinion.

Judgment for the plaintiff.