
    Whitesides vs. Martin.
    A contract and conveyance of lamf made when the «ame was holden adversely, and when the vendor had not been either by himself or agent, or tenant, or, when his ancestor had not been in the actual possession thereof, or have taken the rents for one year next before the sale, are utterly void.
    Bat a bona fide sale or mortgage of land, not possessed or holden adversely at the time of such sale or mortgage, is valid, although the vendor may not he in actual possession.
    A deed or conveyance of land adversely holden at the time of such conveyance, is not champertous, if the deed or conveyance was made in pursuance of a previous contract or agreement, entered into when it was not adversely holden.
    But where a deed of trust was executed before the passage of the cham-perty act of 1821, and the sale of the property was made by the trustee after said act, it was held, that, if the property was holden adversely at the time of the sale by the trustee,' it was within the act and therefore void.
    Whether land be holden adversely or not at the time of a sale, is a question of fact for the jury; if this question is not submitted to them by the court, (who charged that the champerty act had nothing to do with the case,) it is error.
    Martin brought this ejectment against Whitesides in ■ April 1832. His title is as follows.
    Jenkin Whitesides was the owner of the land in dispute; and in July 1820 executed a deed of conveyance to Andrew Hays for the same, in trust to sell for the purpose of paying certain notes which he owed to John H. Lewis, on which notes Bell and Claiborne were endorsers. This deed was registered in September, 1822.
    On the 22d of June, 1829, Hays exposed the land to sale, and Horatio M’Nish bid it off; and on the 3d January, M’Nish gave a written order to Hays to convey to Martin. Hays conveyed to Martin by deed executed on the 3d day of February, 1831.
    The défendant claimed as one of the heirs of Jenkin Whitesides. He also claimed under a sheriff’s deed by virtue of a judgment and execution sale, the judgment was rendered against the heirs of Whitesides in May 1826. The sheriff’s deed was made 21st May, 1831. The notes, to secure which the deed of trust was given, were taken up by Whitesides in his life time, and others given in their place, with M’Lemore and Martin, the lessor of plaintiff, as endorsers or security. Whiteside died in September, 1822. Lewis, at some previous time, required Hays to sell, and he made a sale to Jesse Wharton; but Mr. Rutherford being in possession, claiming for himself, refused to give up possession, and Wharton declined a confirmation of his purchase by taking a deed. Before the sale in 1829, M’Lemore and Martin had paid Lewis, and the sale of 1829 was made at the request of Martin.
    An action of ejectment had been brought against Rutherford, and a verdict recovered against him after two years litigation. Rutherford then filed a bill of injunction on the 20th October, 1823, and obtained an injunction against the writ of possession, which injunction continued until 1832.
    The defendant also offered evidence to show that the dneds were kept on foot by fraud, &c.-
    The defendant offered to prove, as it is stated in the bill of exception^, that the debt in the deed of trust and the notes given by M’Lemore and Martin, to renew the same, were paid and satisfied before the sale by the trustee. This proof was objected to, and rejected by the ■ court, and the rejection excepted to at the time.
    William Rutherford, from whom Whiteside purchased, was in possession at the time of the sale in 1829, setting up a claim in equity to redeem the land. David Whiteside had obtained the possession in 1831, at the date of M’Nish’s order in favor of Martin, and at the time of Hays’ deed to Martin, claiming under the sheriff’s sale.
    Upon these facts, defendant below contended that the ' conveyance was void by force of the act of Í821 against , J J . , , , , ° champerty. I he court charged the jury, that this was not a case within the champerty act; and that if the deed to Hays was fair when made, it could not become fraudulent by matter ex post facto, after Whiteside’s death; and further, if the deed was fair, Martin must prevail, although the deed from Hays to him may have been made after he may have been repaid the money, which he paid Lewis. The jury found a verdict for the plaintiff.
    
      R. J. Meigs and J. Rucks for defendant in error.
    If it be admitted there was no champerty in the conveyance from Whitesides to Hays, still there might be in that from Hays to Martin.
    The bill of injunction filed by Rutherford which was read to the jury, shows that he conveyed the land to Whitesides in 1817. He had continued in possession twelve years from the date of that conveyance, and had given the trustee abundant notice that his possession was hostile to him, and that he held for himself. What then ought the trustee to have done? Instead of selling the land in 1819, he ought to have recovered possession of it, and then it might have been sold for its fair value.
    After property, real or personal, is conveyed to a trustee for the benefit of creditors, if it should be seized upon and taken into the possession of adverse claimants, reason and policy would forbid the trustee to sell it, until he had regained the possession, if there was no law upon the , subject. In nine cases out of ten it would be a literal sacrifice. Instance this case, Wharton refused to complete the purchase; of course M’Nish bought at his own price, (for we are not told what he bid;) he also refused to go on with the purchase, for it was literally buying a law suit, and so Martin agreed to take it. The rule of the common law, that no mau can buy or sell a law suit, is laid down by Coke in his commentary upon Littleton 214, a, Littleton in sec. 347 states the rule, that if a man has a right of entry or of re-entry, and sells the , , , . ; J ’ lands, the entry is gone iorever.
    Coke says this is one of the maxims of the common law, and the reason is, for avoiding of maintainance, suppression of right and stirring up of suits; and therefore, nothing in action, entry or re-entry can be granted over; for under color thereof, pretended titles might be granted to great men, whereby right might be trodden down, and the weak oppressed, which the common law forbiddeth, as men do grant before they be in possession. .
    The act of 1821, ch 66, is declaratory of the common law. Montague C. J. in Partridge vs. Strange 1 Plow. 88, commenting upon 32 Hen, VIII. ch. 9, sec. 2, from which our act was copied says: “In this point the statute has not altered the law, for the common law before this statute was, that he who was out of possession might not bargain, grant, or let his right or title; and if he had done it, it should have been void.”
    This accords with the opinion of the supreme court in Lipe vs. Mitchell, 2 Yerg. 400. There Mitchell having purchased the interest of Lipe, it was insisted that Lipe should be presumed to hold under him. But that presumption was answered by proof that he held for himself, as in this case. This court there decided, that the conveyance of the part out of possession was absolutely void, and communicated no title.
    The provision in the statute, that champerty shall be presumed when there is an adverse possession, unless the purchaser can show that the sale was bona fide, was intended to apply to indictments; for champerty is indictable at common law. By 3 Hen. VIII. the vendor forfeited the value of the lands so sold; and the purchaser should also forfeit the same, if he knew that the sale was cham-pertous. So under our act, the purchaser may not know of the adverse possession; he may think he is acquiring a good title. But upon an indictment he shall be presumed, if there is an adverse possession, to be.guilty of cham-perty, until the contrary is proved. 13 John. 466. But in every case, where the purchaser of an outstanding title brings an action to recover the possession, his purchase being champertous, his action must fail, though he can prove that he paid a full and fair consideration, and was even ignorant of the adverse possession at the time he purchased. This is decided in the above case of Pat-ridge vs. Strange. Montague C. J. and Cook J. agree that every outstanding right or title, where there is an adverse possession, is a pretended right, within the meaning of the statute. See 18 John. 289.
    But it was insisted in the court below, that this land had been conveyed to Hays in trust to sell, before the passage of the act of 1821, and therefore he may complete the trust, notwithstanding a subsequent adverse possession.
    To this we answer, that the trustee held the legal estate, as all other persons hold legal titles. No exception is made in his favor by the statute. The possession of Rutherford became adverse to him, within the act of 1S21, before he sold; that the statute applied to him, both in its reason and its spirit, at the time he sold in June, 1829; and that he could no more sell then, than Whitesides himself could have done had he been living.
    This has no analogy to those cases where persons may assist in prosecuting suits without being guilty of cham-perty, on account of some interest in the matter, or connection with the parties; nor to those cases where the subject of a suit has been assigned for a precedent debt. In all these cases, the suit goes on as before; these interests are merely collateral: the court will not dismiss the suit for champerty on account of them, nor convict the party upon an indictment. But here is an attempt to sell the land, and convey the title, in the very teeth of the statute. If Whitesides had lived, and Rutherford’s possession became adverse to him, could he have sold this land for a precedent debt? Surely not. Then his trus-
    
      tee cannot. Nor is this like the case where A sells a tract of land to B, and gives a bond for the title, and then an .adverse possession is taken by C. In that case A may execute the deed without being guilty of champerty, because there was no champerty in the sale at the time it was made. So if the trustee had sold before Rutherford’s possession became adverse, he might have executed the deed afterwards. But here he actually made the sale to M’Nish, for the first time, on 22nd June 1829. This was the inception of M’Nish’s right, and at this very time there was an adverse possession.
    A question arose in the court below, upon the construction of the deed of trust executed by Whiteside to Hays. The deed shows upon its face, that the land and negroes were conveyed to Hays for the purpose of paying two notes of fifteen hundred dollars each, to Lewis, and for no other intent, use or purpose whatever. It further shows, that Hays was only empowered to sell so much of the property as might be sufficient to pay the debt and interest. It is insisted that when Whiteside took up and cancelled these notes, Hays had no power to sell; for this is the plain and express provision of the deed, and the meaning and intent of the practice. It is further stipulated in the deed, that Whiteside should remain in possession of the property until Lewis required the trustee to sell it. It is shown by the bill of exceptions that Lewis, shortly after the first note was to have been paid, instead of looking to this deed for his money, and requiring the trustee to sell the property, entered into a new arrangement with Whiteside, took new notes from him, and other and different security, that was not only good for the money, but for a thousand times as much. Was not this a waiver of his lien upon the land and ne-groes of Whitesides? 2 Rutherford’s Institutes, 346. But suppose, for argument, it was not, when Lewis’ debt was paid off and satisfied; then what rights, what authority had the trustee under this deed? The very terms of the deed, the plain and obvious construction is, that his right and authority over the property was gone ior-ever. He might have said to the trustee, I never authorized you to sell, but to pay this debt; you never could have sold more of the property than was sufficient to pay it; I restricted .you in the deed, that you should not sell even that, unless required by Lewis. And his heir is now before the court making the same defence.
    Hays, the trustee, possessed only a naked power, accompanied with the bare legal estate. In Atkins vs. Horde, 1 Burrows, 120, it is laid down that the extent of the party who gave the power shall govern every construction; that he has a right to say it shall not be exceeded, nor the conditions evaded; that it shall be strictly pursued, both in form and substance; and that every act done under .it and not warranted by it, shall be void. 1 Term Reports, 707: 1 Lord Ray. 268: 4 Dane’s Abr. 804.
    No argument can be drawn from the registration laws in support of the title of Martin. If the legal estate remains in Hays after the purposes of the trust are satisfied, that does not prove that he can sell and transfer a title to Martin. It does not even prove that he himself could maintain ejectment for the land, or trover for the negroes, contrary to the express provisions and conditions of his deed. Nor can it be argued for Martin that he ought to be substituted into the place of Lewis. Claiborne vs. Crockett, 3 Yerger, 27. Substitution has no place in a court of law; it belongs exclusively to a court of equity. Besides Martin has no ground in this case to pretend that he paid the bill; for the bill of exceptions shows that he kept the deed on foot, after the debt had been paid, for the mere purpose of hindering, delaying and defrauding the creditors of Whiteside, which shows he'is not in a condition to be favored either in a court of law or in a court of equity.
    The evidence of this fraud was also rejected in the court below; whether it was admissible or not, depends , ... , , r . upon the construction or the same deed. II it was, in effect, a mere pledging of the property for the payment of the money, and for no other purpose, and should be construed to be void upon the happening of that event, (to wit; the payment of the money) then Whiteside would stand seized in the same plight and condition as if the trust deed had never been made, and his creditors might seize and sell either the land or negroes under execution.
    
      W. E. Jlnderson, for defendant in error.
    The act of 1821, ch. 66, cannot apply to the deed from Whiteside to Hays, because it was made before the passage of the act.
    The sale by the trustee in 1829, is exempt from the operation of the act of 1821, on two grounds, to wit:
    1st. The proviso to the first section is, that it shall not extend to sales on mortgages of lands not possessed and held adversely. The words are not confined to possession adversely, but possessed and held, is the expression. There was a meaning in this, which is explained by the last clause in the first section, when the words are: “and which land is adversely held under colour of title.” It is therefore contended, that the meaning in the first 'clause of the proviso above quoted is, that the act does not extend to sales and mortgages of lands not possessed under colour of title. Rutherford had no colour of title.
    The plaintiff in error, defendant below, was allowed to read Rutherford’s bill in equity, to show the fact that he claimed possession; but it could not be received against the lessor of the plaintiff as proof of the facts therein stated, and there is no pretence of proof of any claim or color of title in him.
    Again, Rutherford had sold to Whitesides, and was quasi tenant; his possession could not be adverse; he could not set up any title in an ejectment against him by Whiteside.
    
      The second ground upon which the sale of 1829 is exempt from the operation of the statute is, that it appears from the first and last clause in the proviso to the first section, that bona fide sales are not within the prohibition of the statute.
    Hays was a trustee; there was no colour of title against’ that which he held; and Martin was the cestui que trust; the sale made in 1829, evidently was free from the evil intent, and from the mischief prohibited. The trustee had no prospect of gain, nor had Martin any intention but to obtain his money. The prohibition of the statute applies itself to both purchaser and seller. If Hays could sell, and be free from the statute, so must the purchasei;; the circumstances which would justify, would of néces-sity justify the purchase; Martin had a right to demand the sale, as one having a judgment and execution for money.
    The several statutes of England against champerty, afford a construction to the preamble of our act; under these statutes it was held, that a conveyance made in consideration of a precedent honest debt, which is agreed to be satisfied with the thing in demand, when recovered, is not within these statutes. 1 Jacob’s Law Die. 421, Champerty: 1 Bacon’s Abrid. 575, Champerty: 8 Johns Rep. 479. In these authors it is seen that there are many cases of sales of the thing in dispute, or suit, which are held not to be within the statutes, establishing our proposition, that all such sales which are bona fide, and steer clear of the illegal motive, aré good.
    The bid made by M’Nish, did not vest in him any title or interest; the order from him to the trustee, was only necessary for the justification of the trustee. The legal title was in Hays, the trustee; and a conveyance from him passed the legal title to Martin. Whether the trust was properly executed, is not a question of legal cognizance, but merely equitable. The transaction, therefore, between M’Nish and Martin, and the order of M’Nish to Hays, forms no part of Martin’s legal title; they are not ingredients of the title Martin- sets up in this action at law. The inquiry, therefore, whether the statutes of champerty would avoid the contract between M’Nish and Martin, must be a very idle one in this court. •
    The consideration of the conveyance from Hays to Martin, was the satisfaction of the debt from Whiteside to Martin. It had become a debt to Martin, after he had paid Lewis the debt which Whiteside had agreed, in 1820, this same land should pay.
    Would it have been champerty in Whiteside, if he had been living on the 3d of February, 1831, to have conveyed the land to Martin in satisfaction of the debt? It is presumed no one would so contend; but if it was so contended, the above authorities would refuse such a position. Hays acted as the trustee of Whiteside, and surely he could make any conveyance which would have been allowable to him.
    On the exception taken to the rejection of the' evidence offered by the defendant below, it is remarked that the same evidence which was at first rejected was afterwards admitted. An exception is taken to the charge of the court, for stating that if the deed of White-side to Hays was fair, Martin must prevail, though his deed from' the trustee \vas made' after he had been repaid the money he had paid to Lewis.
    If it is-to be urged, that this court is to understand from the wording of this bill of exceptions, that the court below rejected any proof of payment of the debt by White-side, or payment to Martin and M’Lemore, then this part of the charge was perfectly idle, and could not have done any injury to the defendant, as there was no proof before the jury of such payment. Before this court would reverse the judgment on the ground of error, in this part of the charge, if, indeed, the proposition be an error in law, the plaintiff in error would have to show that he had made proof of such payment; as this is not stated in the bill of exceptions. The only way in which the cor-redness of the principle, here stated by the circuit court, can come under the revision of this court, is by considr ering that such evidence had been offered by defendant below and rejected. Now, although, as above stated, we contend that this is not the meaning of the bill of exceptions; and although we know the fact did not occur, yet, as this court may so construe the language of the bill of exceptions, and can look to nothing else, we will proceed to maintain the correctness of the position upon which said evidence was inadmisable.
    Hays executed his deed to Martin, reciting the trusts in the deed of Whiteside to him, by reference thereto, and states that the contingency had happened upon which he was to sell; wherefore he had sold, and thereby conveyed the title to Martin. Now, here was an attempt by parol to contradict this deed. Suppose the proof had been made, what would have been the legal result? The legal title had passed to Martin, and he was capable of proceeding in the action of ejectment, notwithstanding the proof; it was, therefore, no defence at law, but a court of equity was the only forum for redress in such a case.
   Catron, Ch. J.

delivered the opinion of the court.

We are called upon to construe the champerty act of 1821, ch. 66, a matter of more difficulty than is at first apparent, as respects the first section, declaring conveyances to lands void if made contrary thereto.

By the statute of 32 Henry VIII. ch. 9, it was provided, “That no person shall buy or sell, or by any means obtain any pretended rights or titles to any manors, lands, &c. unless he who s.ells, &c. his ancestor, or they by whom he claims, have been in possession thereof, or of the reversion or remainder, or taken the rents or profits, by the space of a year before the bargain, on pain to forfeit the value of the lands so bought or sold.” 5 Comyn’s Digest, 27, American Edition: 15 Viner’s Ab. 154: 2 Statute at large, Lintot’s edition, 97. The for•feiture to be recovered of the vendor or vendee in any of the king’s courts of record, one half to the party suing, the other moiety to the king. By this statute the title is not in express terms declared void, or is it material to enquire what the effect of a conveyance contrary to the statute of Henry VIII. was, as our act of 1805, ch. 11, declared, that thereafter it should be lawful for any ¡person, having right or title to lands, although he might be out of possession, and there might be an adverse possession, to sell and convey the same, and to transfer his interest therein, in as full an [ample a manner •as if he were in actual possession of the land conveyed. This act repeals all laws and parts of laws coming within its purview and meaning. The penalty inflicted by the statute of Henry VIII. was therefore repealed.

The champerty act of 1821 declares, “That no person shall agree to buy, or to bargain or sell, any pretended right or title to any lands or tenements, or any interest therein; and if any such agreement, &c. be made, where the seller has not himself, or by his agent or tenant, or his ancestor, been in actual possession of the same, or of the reversion or remainder, or taken the rents and profits for one whole year next before the sale, such sale, &c. shall be utterly void.”

Thus far the statute pursues substantially the terms of that of 32 Henry VIII. but instead of inflicting a penalty .out of the value of the land sold, declares the agreement to convey, or the conveyance, if any be made, void and of no effect. Such agreement, as by the statute of Henry VIII. would have incurred the penalty, by the first clause of the act of 1831 must be holden void, unless saved by the subsequent exceptions. The settled constructions of the statute of Henry VIII. have come down to us with the statute, and were binding authority before the passage of the act of 1805, not to be disregarded; they will be found in Coke’s Littleton, 369, a, b; and 15 Viner’s Abridgment, 154.

The first proviso and .exception to the enacting clause of the statute of 1821 covers most of the reservations in the British statutes, and some in .addition, in cases of ab* solute sales or mortgage; that is, where the fee is passed or contracted for. It is declared, “That nothing herein contained shall be construed to [extend to] an absolute and bona fide sale or mortgage of lands or tenements, not possessed,, and [or] held adversely at the time of such sale or mortage.”

1st. If the lands be unpossessed, they may be sold. 2d. If they .are in the possession of others not holding adversely to the bargainor, the title may be passed as theretofore. What an adverse holding is must be tested by the common law rules, taken in connexion with the facts. A second exception is made in the act in favor of nonresident bargainors;.as to them, a naked adverse possession will not avoid the contractor deed, but the adverse hold-ing must be by color of title, a deed, devise or 'inheritance. This exception has no application to the present cause, and is only noticed to ascertain the intention of the legislature as to the character of the possession necessary to render null the deed or agreement to sell, that the .possession must be adverse to the grantor or bargainor.

Whether William Rutherford was holding adversely to Andrew Hays at the time of the .sale by. the trustee, was a fact for the jury to find, and which was not submitted to them; the court holding that the deed vesting the land in the trustee having been executed before the passage of the act of 1821, and he having acted in pursuance of the covenant to sell on the failure to pay by Mr. Whiteside, the sale in execution of the trust could well be made, notwithstanding Rutherford, a third person, was at this time in possession of the land, and holding it adversely to Whiteside and Hays. The first inquiry on the charge of 1 Vru the court is, was the sale oí a pretended right. I-he statute holds, that no person shall agree to buy, and no person shall agree to bargain or sell, any pretended right or title to land. The title that Hays, the trustee, did sell, and that Martin did buy, was -not in fact pretended but real, yet the sale and purchase are within the statute, if there be no other reason for excepting of it. Thus Lord Coke (Coke’s Littleton, 368, b,) in his reading of the statute of 32 Henry VIII. holds, “If A be disseized, in this -case A hath a good and lawful right; yet A, being out of possession, granteth to, or contracteth for the land with another, he hath now made his good right of entrie pretenced within the statute, and both the grantor and grantee within the danger thereof.”

It is further liolden by Lord Coke, that he who hath right may eject him who hath none, and sell immediately after the possession is recovered: but the wrong-doer, holding possession by a pretenced title, must have been possessed by himself or others one whole year before he can sell or contract to sell; so that the mere force of taking possession confers no power on the possessor to contract for the sale of title, until the possession be hold-en for one whole year. In both cases the deed, or contract for the title attempted to be sold, is pretended within the British statute, and within ours of 1821.

But it is manifest the sale and conveyance from Hays ■to Martin was deemed valid on another ground; that of the covenant to convey contained in the trust deed to •him who might purchase at the trust sale. This was supposed to be sanctioned by the construction given to another British statute, (28 Edward I. ch. xi,) which declares, “That no officer, nor any other, (for to have part of the thing in plea,) shall not take upon himself the business that is in suit; nor none, upon any such covenant, shall give up his right to another; and if any do, and he be attainted thereof, the taker shall forfeit,” &c. 2 Inst. 562. A contract to have part of the thing in suit, is void by this statute, if made ‘hanging’ the suit: yet, says Coke, (2 Inst. 563,) if A. bargain with B, own er of the manor of D, and B is impleaded, and pending the suit enfeoff A, according to the bargain, though this be within the letter of the law, yet it is not within the meaning. Vide 8 Johns. Rep. 483: 5 Comyn’s Digest, Maintenance, a 3. On the construction of the British acts of champerty the settled doctrine is, that a contract to convey vests the equity in the bargainee, who has the right not only to call for the legal title, in fulfilment of the bargainor’s covenant, but the latter, holding as trustee, cannot refuse his name to the purchaser to recover the premises if need be; or can he be permitted to refuse,in a court of equity, to execute the contract by conveying the land. Wood vs. Griffith, 1 Swans. Reports, 55. Taking this to be the true construction of our statute, does Martin stand .on the foot of one contracting by agreement for the legal1'title at a time when such agreement could lawfully be made? Until the trustees’ sale no equity vested in Martin; he had no right to call for the legal title, or any right to use the name of the trustee to recover the land at law. Truly, Hays, by his covenant, might bind himself to sell, but he could not be bound to do an unlawful act, or to do that which Whitesides hinw self could not have done had he retained the title. Surely had Whiteside not conveyed in trust to Hays, his powers to sell would have been as plenary as those of the trustee could be, and it must'be admitted, a sale directly from Whiteside to Martin, Rutherford holding the premises adversely, would have been within the statute and void. We therefore think the circuit court misconstrued the statute, and that the judgment must be reversed.

Judgment reversed.  