
    Williams vs. Hogan.
    Champerty. Construction of the act of 1821 c 66. Asale, by one out of possession, of land adversely held, is void for all purposes. It is neither good as against the adverse psssession or title, nor as between the parties themselves.
    Same. Covenant on the warranty. Therefore the vendee cannot maintain covenant on the clause of warranty in the vendor’s deed; and if the fact of the adverse possession appear in the declaration, a general demurrer to any pleading in the case will leach the defect
    By deed of bargain and sale with covenant of general warranty, dated May 14, 1828, Sampson Williams conveyed to Edward Hogan, of whom the defendants in error are heirs at law and devisees, 590 acres of land, which was then in, the adverse possession of Lee Sadler, and others. Hogan died on the 20th of the same May. On the 31st of August, 18"36,the defendants in error sued Williams in the circuit court of Jackson on the covenant of warranty in the deed, declaring in one count as devisees, and in a second, as heirs at law of Edward Hogan, and averring by way of breach of warranty— “that at the time of making the covenant the land was adversely held and possessed by a title superior to that of the defendant, by Lee Sadler, &c. and so the plaintiffs aver that by virtue of the seizin and superior title of the said Lea Sadler, &c. the said Edward Hogan, in his life time, and they since his death have been expelled and kept out of, and from the possession of said bargained land and appuitenances; and so they say that the defendant has not kept and performed his covenant,” &c.
    The defendant pleaded 1. covenants performed, and this, &c. 2. That neither the plaintiffs nor their ancestors have been expelled from and kept out of possession of the land by superior title and due course of law, and of this, &c. 3. Protesting that the plaintiffs were not out of possession of the land at the time the covenant was executed, neither the plaintiffs nor their executor was or were expelled and kept out of possession, or evicted by due course of law, and of this, &c. 4. That the defendant at, &c. on, &c. offered to sue, and investigate the title and give full possession of the land to the paintiffs, &c. but they colluded with the tenants and refused to sue or have it sued for, and this, &c. The plaintiffs replied to the first plea, and issue was joined there*' upon; and they demurred to the other pleas.
    At November term, 1836, his Honor Judge Caruthers of the fourth circuit, sustained the demu..or 'is to the 2nd and 3rd pleas, and advised as to the fourth. At March term, 1837, he sustained the demurrer to the 4th plea. At March term, 1838, the issue joined upon the first plea was submitted to a jury, who gave a verdict for $¡136 74 cents for the plaintiffs, and they had judgment. The defendant prayed a writ of error.
    S. Turney for the plaintiff in error,
    insisted that as there was a demurrer in the case, which would reach back to the first error in the pleadings, and the declaration averred that the land was adversely held at the date of the covenant, it was impossible to maintain the action. Because, the case, he said, was under the act of 1821, c 66, against champerty, which prohibits the sale of lands by one who is out of possession, and declares the “bargain, covenant, contract and agreement” to be void. So that to sustain this action would be to say that a covenant, which is void, may nevertheless be the foundation of a legal demand.
    A. Cullom, for the defendant in error,
    argued that Randolph vs. Meelts, Martin and Yerger, 68, decides that the covenant of warranty is broken as soon as made, where, as in this case, the land is, at the time of making it, held adversely to the title of the warrantor.
    As to the question upon the statute of champerty, he insisted that this covenant was not affected by that law. It is a statute against fraud, and must be construed to suppress the mischief; and when it declares the deed void, the meaning is, that as a conveyance operative against the person in possession, it is void. He being the person for whose safeguard the statute intended to provide, a different construction of the act, instead of suppressing, would be an encouragement to fraud. Make the conveyance inoperative and void as against the person holding an adverse possession at the time of the sale, and good, as between the. parties to the deed, and the mischief is suppressed, fraud prevented and justice dpne. 9 Johps. R. 60; I. Johns. C. 81; 10 Mass. R. 267.
    
      December 11.
   Reese, J.

delivered the opinion of the court.

The declaration alledges that at the time of the execution of the deed of conveyance, the land which it purported to convey, was adversely held by a title paramount to that of the bargainor, — and the question is, whether the circuit court upon the argument of the demurrer in the case, should not, on account of that, have adjudged the declaration bad, and the action not maintainable, because of our statute of champerty of 1821, c 66?

It is said, on behalf of the action, that a deed of conveyance or contract of sale for land adversely possessed, although void, by the provisions of the act referred to, as against such adverse claimant, is yet good as between the parties to the deed or contract of sale. This proposition is at war alike with the letter, and the spirit and policy of the act. The act declares that “no person shall agree to buy, or to bargain or sell any pretended right or title in lands or tenements or any interest therein; and if any such agreement, bargain, sale, promise, covenant, or grant be made, where the seller has not himself or by bis agent or tenant, or his ancestor, been in actual possession,” &c. Such is the letter of the statute. Its object and policy were, that those in actual possession of land should not be molested by suits founded upon pretended or dormant claims, unless such suits were instituted and conducted, bona fide, by the proper owners, upon whom the law had cast the title, for their own proper benefit and at their own proper risk and costs.

The buyer, in view of such purpose, it was especially important to restrain, for it was his ever restless cupidity, stimulated by the low price of these dormant claims, and by the prospect of large profit, which attacked the quiet and repose of society, and made our courts of justice the theatre upon which to consummate speculations, not more respectable, and much more disastrous to society than those of the lottery office or the gaming table.

To give such a construction to the statute, therefore, as would permit the buyer of dormant claims, securely to take a deed or covenant from the claimant, and if he failed to recovev by a demise in the name of such claimant, to indemnifyhim-self by a suit against his vendor upon the deed or covenant, would be to encourage, and not to suppress the spirit and practice of champerty.

We are, therefore, clearly of opinion that the action is not maintainable, and that the judgment must be reversed.  