
    Gass vs. Malony.
    Gass sold land with covenants of warranty to Malony; Malony was sued in ejectment and Gass defended. The plaintiff recovered and Malony was evicted. Gass then took a quit claim deed for the premises from Malony, and paid Malony eight hundred dollars in discharge of his warranty. This deed was made whilst the land was adversely held by the plaintiff in the ejectment suit, and after he had held it for more than a year: Held, that the deed from Malony to Gass was champertous and void by act of 1821, ch. 66, sec. 1, and no evidence as to the fairness and good faith of the parties to such deed would rebut the presumption of champerty.
    This presumption stands until the deed is proved lona fide not merely between the parties, but with reference to the policy and provisions of the cham-perty act.
    On the I8th day of February, 1832, John Gass instituted an action of ejectment in the circuit court of Greene county against Robert Malony for the recovery of the possession of one hundred and fifty-nine acres of land lying on the waters of Lick creek, in Greene county. After various continuances it was submitted to a jury at the February term, 1839, judge Powell presiding.
    The mass of testimony introduced, oral and documentary, need not here be set forth, as much of it was in relation to points upon which the cause did not turn. The facts, how-, ever, upon which the case did turn, are substantially as follows:
    John Gass, in 1812, sold and conveyed by deed, with general warranty, one hundred and fifty-nine acres of land, lying in the county of Greene, on the waters of Lick creek, to Hugh Malony, who sold to his brothers, Hugh and John Malony, and gave them a bond to convey.
    In June, 1826, Robert Malony instituted an action of ejectment in the circuit court of Greene county against William and John Malony. Gass having sold the land by deed with general warranty, was permitted to come in and defend. In 1829 Robert Malony recovered a judgment against Gass for the premises, in the supreme court of the State at Knoxville, and William and John Malony were turned out of possession in July, 1830. Robert Malony took possession and continued to hold the land as his own under the judgment till this suit was instituted. Hugh Ma-lony delivered up the notes of his brothers, William and John, and the title bond was cancelled and the contract between them rescinded.
    In order to avoid a suit on the warranty, as plaintiff, Gass, alleged, in 1832, Hugh Malony re-conveyed the land to Gass, and Gass paid him iii consideration therefor the sum of eight hundred dollars. At the time of this sale and re-conveyance Robert Malony was in possession of the premises, holding it adversely, as he had done from the date of the eviction of John and Robert Malony. Gass then instituted this action in 1832 against Robert Malony, and in support of his title to the possession of the premises (amongst other deeds) read the deed from Hugh Malony to himself made as aforesaid; and the cause turned upon the validity thereof, it being attacked as champertous under the act of 1821, ch. 66, sec. 1.
    Judge Powell charged the jury as follows: “From 1805 to 1821 a person out of possession could sell and pass a title to land in as full and ample a manner as if he was in possession, although the land was claimed and possessed adversely. In 1821 the legislature passed what is called the champerty-act. By the first part of the first section of this act it will be perceived all deeds of conveyance of land, where the land is held adversely, and in which the seller had not been in possession or received the rents for one year, are declared utterly void; but there is a proviso which creates all the difficulty in construing the act. From the words of the last part of the proviso it would seem at first blush that the legislature intended to qualify the general expressions in the first clause, and instead of making such conveyances absolutely void, intended only to make an adverse possession presumption of champerty, leaving it to the party to remove that presumption, if he could, by proof. Notwithstanding this re-pugnancy, I am not perfectly satisfied this was not the intention of the legislature, though it may have been, as contended, to exempt the person from criminal punishment who acted from ignorance and in good faith; but be that as it may, I consider the question settled by the cases in 7th and 9th Yerger’s Reports. It is true in neither of those cases do the court expressly and in terms notice the clause referred to, although in one of the cases it was made a point in the argument, but in both cases the facts presented a case of a bona fide sale, and they determined, as I understand the cases, unqualifiedly, that where a sale of land is made when another is in possession claiming adversely, and the seller out of possession for one year, &c. the sale is absolutely void, and the deed imparts no title to the buyer. By their decisions I am bound; therefore, if Robert Malony was in possession of the land, claiming it adversely for more than one year, the deed of 1832 from H. Malony to John Gass was void and passed no title; and if the plaintiff had no legal title he cannot recover. His deed of 18.12 to H. Malony passed out of him whatever title he had.”
    The jury rendered a verdict for the defendant, Malony, and Gass (his motion for a new trial being overruled) appealed in error.
    
      Peck, for Gass.
    1. The charge excludes the operation of the proviso. The act is thereby made criminal when there is the want of intention to do a wrong. This is contrary to every principle; for it is the intent that constitutes the. act a crime. Here this criminal intent is excluded.
    No indictment will lie under this clause of the cham-perty act, (see its language;) but if an indictment would lie, upon the trial of it the question of intention would be a question for the jury. If in that case it were proper for the jury, why not in this? The rule ought to be the same in both cases. Gass could maintain H. Malony in the suit against him; he could take the whole suit upon himself and not be guilty of maintainance; and why not in good faith take back the title, replacing himself in his former estate?
    To come at the true construction we must consider the object of passing the law, what was the evil, and how far the remedy was intended to apply. The evil consisted in disturbing the possession by a suit under a deed got up for the purpose of a suit; but this was not intended to apply to a case where the right to the estate was honestly made the question; and in this the statute under consideration differs from the English. In that there is no such saving. Having been inserted, it is as much the law of the land as the enacting part. The saving, when made to apply, is as broad as the penalty. To illustrate this: if an indictment could be framed upon this section of the act, the saving in the proviso should be negatived in the indictment before the defendant could be made to answer for the criminal charge, and if properly charged then the defendant might show his innocence by proofs that the act was done without a bad intent. And surely when the proviso is inserted for the benefit of him taking the deed, there is no reason for the court striking it out by construction: that is to make the law, not to construe it. The proviso in this act is as much a saving as the proviso in the statute of limitations. Under the proviso hr the statute of limitations there is no bar in the case of an idiot, In such a case, the fact being proved and found by the jury, there is no limitation. The statute is neutralized. So under the champerty act. Bring the case within the proviso and there can be no champerty.
    This court, speaking of this act, said it was highly penal in its provisions, and therefore cannot have the construction given to remedial acts. This remark must be applicable to every part of the act; for it is as lawful to convey a right as for an attorney to contract for his fee. 9 Yerger, 118. It is just as serious to pronounce upon a right to the freehold and destroy it, as to pronounce upon the right of a lawyer in contracting for his compensation. In the ordinary transactions of life men are presumed to be honest. If a presumption is raised in any casé against one, arising out of his acts, the law permits him to rebut it; and the remark applies especially in this case, where the proviso in the act comes in bis favor. This court has decided that a deed made to carry out a contract entered into previous to the adverse possession is not cham-pertous but lawful. 10 Yerger. The act done, the making of the deed is prima facie, champerty; but by proof it is explained and made lawful and innocent. If in that case it can be done, why not in the case before the court? Gass was bound by his deed to H. Malony; Malony was evicted; Gass was subject to an action and damages; H. Malony would not risk an action to recover back the land; the legal title is in Gass; but he cannot set it up while the deed he has made to H. Malony is in the way; H. Malony is willing to replace Gass as he stood before. There can be no breach of morals in this any more than in the case of a deed of trust or bond for a title, and a conveyanoe under either, while the land is adversely held. It is no gambling transaction in my view of it; no chances or speculating upon probable success. Touching the title, Gass and Hugh Malony stood together and were supported by the same claim; and it cannot be material whether Gass sue in his own name, having taken back the title, or lay a count on a demise in the name of Hugh Malony with one in his own name. If Gass is not permitted to take back the title and replace himself, then he is in a most helpless condition. The other will not sue for the land; Gass cannot, for his deed stands in the way, and the warranty in that deed makes Gass liable.
    2. This is no pretended right. The evidences in the record show that the better title was in Gass, if this was a good deed to pass the title, and therefore not champerty. r J 15 Viner, 155-6.
   Reese, J.

delivered the opinion of the court.'

The question mainly discussed in this case, and upon the ground of which the plaintiff in error seeks a reversal of the judgment below, is whether the concluding words of the first section of the act of 1821, ch. 66, commonly called the “champerty act,” shall be so construed as to make the meaning of the entire section to be, that an adverse possession at the time of making the deed, covenant or agreement shall create a presumption of champerty as to such deed, covenant or agreement which shall stand only until the parties to such deed, covenant or agreement shall show that as between themselves the conveyance or contract to convey was fair and bona fide. Such construction would be in direct conflict with the policy of the statute and with the express words of the enacting clause, which provides that when the vendor or those under whom he claims shall not have been in actual possession at the time of such sale, &c. and for one whole year before, such sale, bargain, grant, &c. “shall be utterly void.” But it occurred to the framers of the law that at that time there was much granted land in Tennessee of which no person was in “actual possession” or receiving rents or profits, and in such case the first proviso enacts that one claiming title may bargain, sell or mortgage, there being no adverse possession at the time, and that in all cases sales at execution may proceed as formerly. Again; it occurred to the framers of the law that much of the uncultivated land in Tennessee was held by non-resident claimants, the sale of which to actual settlers it was the policy of the State to encourage and not to obstruct, and they provide that the act shall not be so construed as to prevent a sale by such person, if the land be not adversely held and possessed at the time. But apprehending that cases might arise, by virtue of these provisions, tending to weaken the force and obstruct the policy of the statute, and that in many cases the actual settler who was sued in ejectment might, from the difficulty of showing dates as to the commencement of the possession or of the true time of making the deed or covenant, be unable to show champerty, although it in fact existed, they make a general provision that if one not having possession of land shall sell, &c. champerty shall be presumed until such purchaser shall show such sale, was bona fide made; that is, bona fide not merely as between themselves, but with reference to the policy and provisions of the champerty act. This he may show by proving that at the date of the deed perhaps there was no actual adverse possession at all, or although apparently and in fact adverse, the person in possession was estopped in law to deny the title and possession of the vendor because derived from him. By showing this the purchaser would show the sale to be bona fide with reference to the general provisions of the cham-perty act. But to hold that these few last words of the section have the meaning contended for would make all the provisions, not only of the enacting clause but of the provisos, useless and absurd. We affirm the judgment.  