
    ELLIS et al. v. SMITH & BUSSEY.
    1. When in a proceeding instituted to recover land, and damages for a trespass thereon, each of tire parties stands upon the proposition that he has a legal title to the land, it is error for the trial judge to charge the jury: “ If you should find that there has been no claim made for a great lapse of time since the death of the grantee, and a great number of years has elapsed since the death of the grantee before bringing suit, the law would presume that the property of the deceased, to which plaintiffs claim title, had been disposed of, or that it had been abandoned; . . and if you believe that the suit is a stale one, then you might find for the defendant.”
    2. If it appears that a case which is being tried was instituted, and is being carried on, under a champertous contract between the plaintiff and his attorney as to the fees of the latter for the institution and prosecution of the case, this does not authorize a charge that the plaintiff is not entitled to recover. The contract which is obnoxious to public policy and which can not be enforced under the statute is that which is affected with the champerty ; but the prohibition does not apply to a pending cause of action which by a champertous contract the attorney agreed to prosecute.
    Argued December 8,
    Decided December 20, 1900.
    Equitable petition. Before Judge Smith. Irwin superior court. March 28, 1900.
    
      J. W. Haygood, Hamilton McWhorter and J. K. Hines, for plaintiffs. J. H. Martin, for defendants.
   Little, J.

We do not find it necessary to consider in detail any of the twelve grounds contained in the motion for a new trial, except the two hereafter specifically considered. It is sufficient as to the others to say that there was certainly no error on the part of the presiding judge in refusing to compel the production of the plat and grant, when, under the plain letter of the law, no oath or statement was made that the plaintiffs had reason to believe that the paper was in the possession or control of the defendants, and that it was material to the issue. Under other of these grounds, no error is shown, in the light of the qualifications made to them by the judge. In still others, which complained that the court erred in susjpning objections to certain questions which were propounded to a witness, the motion does not show what answers the witness would have made to such questions. In the absence of such statement the grounds can not be passed on.

It is contended by the plaintiffs in error that the court erred in charging the jury: “ If you should find that there has been no claim made for a great lapse of time since the death of the grantee, and a great number of years has elapsed since the death of the grantee before bringing the suit, the law would presume that the property of the deceased, to which plaintiffs claim title, had been disposed of, or that it had been abandoned. Look to the evidence on this question and see what the truth is; and if you be- ' lieve that the suit is a stale one, then you might find for the defendants.” The action instituted in this case was an equitable” petition to recover possession of a certain tract of land, and to recover damages for certain trespasses which, it was alleged that the defendants had committed thereon; and, as ancillary thereto, there was a prayer for injunction to restrain the defendants from committing further trespasses on the land. We are of the opinion that the charge in reference to a stale demand was error. The right of the plaintiffs to recover depended upon title. This, under our law, may be acquired in different ways. The plaintiffs rested theirs upon a grant from the State to an alleged ancestor from whom they claimed title descended to. them. The answer shows that the defendants also claimed title to the land, which claim was rested on possession for seven years under a bona fide color of title. So that each of the parties claimed to have title. There is no superiority in a title derived from a grant to that acquired by possession under color of title for seven years, although the latter is derived by force of a statute. We have in this State no limitation upon the right of the owner to institute an action to recover land to which he has title. As was said by Judge McCay in the case of Lopez v. Downing, 46 Ga. 120, we attain the same end by our law of prescription, which gives the person in possession for seven years a good title. Now, whether the plaintiffs were entitled to recover the land, and damages for the trespass, and to have an injunction issue against the defendants, restraining further trespasses, depended upon the question which of them had title to the land; and, under the facts and pleadings in this case, no question of a stale demand arose. The doctrine of stale demand is a purely equitable one, and only arises whenever from the lapse of time and laches of the plaintiff it would be inequitable to allow a party to enforce his legal rights. Civil Code, §3775. And if the plaintiff in the action had a title by grant from the State to Ms ancestor, we do not see why it would be more inequitable to allow liim to enforce Ms legal rights than to allow the defendant, who confessedly had title depending upon possession, to enforce his. It was ruled by tMs court in the case of Wyche v. Greene, 11 Ga. 159, that lapse of time can never be set up as a defense in equity when it would not constitute a good statutable bar at law. By express statute the same limitation as to actions prevails in courts of equity as in law; and wMle, as we have said, there is no limitation of time prescribed in wMeh the owner of land shall institute action .to recover possession under his title, this is presumably so, because of our- law as to acquiring title by prescription. But it would be carrying the doctrine of stale demand entirely too far to apply it to a case where both parties claim the land under purely legal title. At most, the doctrine rests upon a presumption; and Mr. G-reenleaf in his work on Evidence (16th ed.), § 46, says: “ It is sufficient that the party, who asks for the aid of this presumption, has proved a title to the beneficial ownership, and a long possession not inconsistent therewith; and has made it not unreasonable to believe that the deed of conveyance, or other act essential to the title, was duly executed. Where these merits are wanting, the jury are not advised to make the presumption.” The contentions of the parties in this case are not such as make this doctrine at all applicable, and, as the pleadings stand, must be settled under legal rules by proof of title.

Another ground of the motion complains that the court erred in charging the jury as follows: “ As to this being a speculative lawsuit, look to the evidence, and if you find that the suit is being prosecuted by the plaintiffs, but that the expense of the litigation is being borne by other parties, whether they are attorneys or not, . . and whether or not it is being prosecuted in good faith; and if you find that it is a speculative suit and not prosecuted in good faith, I charge you that the plaintiffs are not entitled to recover.” The foundation for this charge we presume, is the claim of the defendants that the evidence showed that, under a contract with the attorney who was employed to bring the suit, the plaintiffs were to be relieved of all expenses relating thereto, and the attorney was to receive for his services and expenses one half of the land recovered; and that such a contract is champertous, and being so, the suit should be dismissed. Our code very properly declares that a champertous contract, being against the policy of the law, can not be enforced. Civil Code, § 3668. But no contract, champertous or otherwise, was sought to be enforced in the action which was then being tried; and evidently the construction which the trial judge placed on the law of champertous contracts was, that a suit which was instituted and prosecuted under* a contract for fees which was champertous could not be maintained, and the plaintiffs therein could have no recovery. This view of the law and the charge given, which supports it, are erroneous. It is only declared by our statute that the champertous contract can not be enforced; that is to say, if the attorney who was employed to institute the action was seeking to recover under Ms contract, and it was shown to be champertous, then he would not be entitled to recover, because the contract upon wMch he relied was agamst public policy. But how can that contract affect the cause of action wMch he prosecuted ? There was nothmg champertous about that, and therefore no reason why it should go out of court on that ground. Blackstone defines champerty to be “ A bargain with a plaintiff or defendant campum partiré, to divide the land or other matter sued for between them if they prevail at law, whereupon the champertor is to carry on the party’s suit at Ms own expense” (4 Bl. Com. 135); and a contract of tMs character is the one wMch we think public policy reqmres shall not be enforced, and is the one made obnoxious by our statute. We are aware that some courts in other jurisdictions have ruled that if the fact that a suit is being prosecuted under a champertous contract comes to the knowledge of the-court, it should be dismissed. For an enumeration of the cases m wMch this doctrine is held, see notes 1 and 2 M 5 Am. & Eng. Ene. L. (2d ed.) 832. But tMs is not a sound doctrine, and some of the courts originally so holdrng have receded from it; and the better doctrine, wMch now seems to be supported by the weight of authority, is that the fact that there is an illegal and champertous contract for the prosecution of an action is no ground for an abatement of such action, nor a-defense thereto. For a reference to the list of American and English cases so rulrng, see note 1, p. 833 of the same volume of the Encyclopaedia. TMs court is committed to-this doctrine. In the case of Reed v. Janes, 84 Ga. 380, it was so ruled. In the oprnion CMef Justice Bleckley said there was a well-grounded distinction between direct champerty and collateral champerty; that the latter was exterior to the sMt, and, although affording a motive for carrymg on the litigation, is not directly involved m it as a matter for decision or adjudication M the pending controversy; and that, accordmg to the great weight of authority, collateral champerty is not available as a defense to the action, whether the proceedmg be at law or in eqmty, unless there be some statutory provision controlling the question. The rulrng in this case determines the charge of wMch complaint is made to be error.-

Judgment reversed.

All concurring, except Fish, Jl, absent.  