
    Robert Brinley versus Phinehas Whiting.
    A conveyance by a disseisee is unlawful and void, but the title remains in the grantor, so that in a writ of entry brought by him, the tenant cannot plead that the demandant, after the disseisin, made such an unlawful conveyance, and that the action is brought at the expense and for the use of the grantee in pursuance of an unlawful agreement between him and the grantor.
    Writ of entry to recover seisin of a small parcel of land in Lowell.
    The tenant pleads, 1. the general issue ; and 2. a special plea in bar, in which he avers, that on the 2d of April, 1816, one Fletcher was seised of the demanded premises, and on that day, for a valuable consideration, conveyed the same to the tenant; that by virtue of the deed he became seised of the same in fee simple, taking the rents and profits thereof, and that the deed was duly recorded ; that on the 10th of March, 1822, it was unlawfully agreed between Brinley and the Merrimack Manufacturing Company, that Brinley should sell, release and quitclaim to the company a pretended title to two islands in Merrimack river, together with his title to the fishery in the river, and a like pretended title to the demanded premises ; that in pursuance of this unlawful contract Brinley, on the 19th of March, 1822, made a conveyance tc t^le company of his pretended title to the demanded premises, and the two islands and the fishery, for 50 dollars, which the company knew to be an inadequate consideration for a valid title *o the same ; that such deed was made with the intention, as well on the part of the 'company as of Brinley, that the company should be permitted to commence and prosecute a suit against Whiting in the name of Brinley, to enforce the pretended right of Brinley to the demanded premises and. to recover the same for the use and benefit of the company, and thereby to oppress and injure Whiting ; that at the time of making the bargain and at the time of executing the deed, the company had no right, title or interest whatsoever, in possession, remainder, or reversion, in or to the demanded premises, and that it was well known to the company and their agents, that Whiting had for more than five years been in the quiet seisin and possession thereof, taking the annual profits, and that the pretended title of Brinley was disputed by him ; and further, that this suit was commenced and is still prosecuted by the company and their agents, at the cost and charge of the company and for their sake and benefit, and that Brinley has not, nor ever had, any concern in prosecuting the same ,• and the tenant prays judgment whether the company, suing in the name of Brinley, ought to have or maintain this action.
    The demandant replies, that before and until the disseisin complained of, he was seised and possessed of the demanded premises in his demesne as of fee, and also of another parcel of land, and nf a mill-site, adjoining the demanded premises ; that until the disseisin the mill-site and the demanded premises constituted an entire parcel, and the demanded premises were necessary to the convenient use and enjoyment of the mill-site ; that proposals were discussed between the demandant and the company as to the sale and conveyance to the company by the demandant, of all his title and estate in and to the land, mill-site and privileges, mentioned in the replication, and because the demanded premises had, with the mill-site, constituted one parcel, and were necessary to the convenient use and enjoyment of the mill-site, and because the demandant believed that otherwise he should not be able to sell the same or should not obtain an adequate price therefor, he, the demandant, to induce the company to buy the same and to pay therefor and for the other estate a full and adequate price, proposed that if the company would pay him 1550 dollars, which he believed to be the just value of the estate to be convoyed, he would execute to them a deed of conveyance with warranty, of the parcel of land described in the replication and the mill-site and its privileges, and a deed of release, quitclaim and conveyance of his title and estate in and to the demanded premises and the islands and fishery, and would authorize them in his own name to enter into and hold seisin and possession of the demanded premises to their own use, or for the same purpose, but at their own expense, in his name to institute and prosecute any suit for recovering the seisin and possession thereof; that the company agreed to this offer, and in conformity thereto the money was paid, and the deeds were executed and delivered and recorded, and the authority given by the demandant to the company, and all as one transaction, and the present suit is instituted and prosecuted accordingly ; all which might be lawfully done without this, that the demandant made any such unlaxvful agreement as the tenant has alleged ; and this the demandant is ready to verify ; wherefore &c.
    The tenant demurs. 1. because the replication confesses and by the allegation of new matter avoids material facts alleged in the plea in bar, and then concludes with a traverse ; thereby preventing the tenant from denying the new facts alleged by the demandant in avoidance of the bar ; — 2. because the traverse is defective and bad in this, that it is either a denial o the same agreement which was before confessed in the replication, or it is merely a denial of a conclusion of law, to wit, that the agreement set forth in the bar is an unlawful agreement.
    The cause was argued, first at the bar, at October term 1826, and afterwards in writing, by Stearns, for the tenant, and Gorham, for the demandant.
    
      Stearns.
    
    The replication is bad on general demurrer. It does indeed confess a double act of champerty and mainte
      nance, viz. 1. the contract for the purchase of the demanded premises ; and 2. the agreement to sue in Brinley’s name ; both of which are offences at common law. But no matter is alleged sufficient to avoid the plea. The attempt is to avoid the effect of purchasing the pretended title, by connecting it with another and a lawful contract; but the law cannot be eluded by associating with a pretended title to one parcel of land a valid title to another. Van Dyck v. Van Beuren, 1 Johns. R. 362.
    In support of the cause of demurrer first assigned, he cited Bennet v. Filkins, 1 Wms’s Saund. 22, note 2 ; Spear v. Bicknell, 5 Mass. R. 130, 131 ; Oystead v. Shed, 13 Mass. R. 520 ; —1 Wms’s Saund. 207, note 5, and 209, note 8 ; Bedell v. Lull, Yelv. (Metcalf’s ed.) 151, and note ; Helyar’s case, 6 Co. 24 b ;—Com. Dig. Pleader, G 3, G 17 ; Hob. 104, 105 ; Vaugh. 62 ; Richardson v. Orford, 2 H. Bl. 182; Bac. Abr. Pleas &c., H 4 ; Stephen on Pl. 210, 251 ; 1 Wms’s Saund. 103, note 3; Chandler v. Roberts, 1 Doug. 60 ; Filewood v. Popplewell, 2 Wils. 65.
    On the second cause of demurrer he cited 1 Saund. 23 2 H. Bl. 182 ; Priddle and Napper’s case, 11 Co. 10 b. But it may be said that the plea is insufficient; and two questions may arise ; —
    1. Whether the plea discloses a case of champerty and maintenance; and it can hardly be pretended that it does not. 1 Hawk. P. C. c. 86, § 1 ; Plowd. 80, 88; Flower’s case, Hob. 115; St. 32 Hen. 8, c. 9 ; Wolcot v. Knight, 6 Mass. R. 418; Everenden v. Beaumont, 7 Mass. R. 76 ; Swett v. Poor, 11 Mass. R. 549.
    2. Whether the offence can be pleaded in bar. It is admitted that no such precedent is to be found; but on the other hand, no case has been found which decides that such a plea is bad. In the Register, 182 b, there is a writ of prohibition to A. B. against his maintaining a suit like the present. The case comes within the general rule, that no right of action can spring out of an illegal contract. Blachford v. Preston, 8 T. R. 93 ; Biggs v. Lawrence, 3 T. R 454 ; Langton v. Hughes, 1 Maule & Selw. 593 ; Belding v. Pitkin, 2 Caines’s R. 148; Hunt v. Knickerbacker, 5 Johns. R. 327 ; Holman v. Johnson, Cowp. 343 ; Whitaker v. Cone, 2 Johns. Cas. 58.
    
      Gorham said,
    that if the contract set out by the tenant was illegal, it might subject the parties to prosecutior and forfeitures, but it neither divested the demandant of title nor vested any in the tenant; it was a mere nullity, and the demandant, upon recovery, would hold the land for his own benefit and not for that of the M. M. Company. Wolcot v Knight, Everenden v. Beaumont and Swett v. Poor, ubi supra. To claim the interference of the Court on this ground, is asking them to settle the legality of a contract as stated by the demandant, when the party who is to suffer by such decision, viz. the M. M. Company, is not before the Court.
    But we contend, that at the present day there are many cases in which a man may lawfully sell or buy an outstanding title. It has been from necessity a constant practice in new countries, and numerous cases may be supposed where it should be permitted. The whole doctrine has been of late greatly modified, and equity always supported such sales when fairly made. Master v. Miller, 4 T. R. 340 ; 6 Mass. R. 421 ; 6 Dane’s Abr. 743. There is no reason why the sale of a title to land should stand upon a different footing from the sale of any other chose in action. The old law applies equally to both, as will be seen by reference to Com. Dig. Maintenance; Godb. 81, 82 ; 2 Inst. 209 ; and it is presumed has been equally relaxed. as to both ; either may be made fairly, as a transfer of property, which is our case, and either may be made with intent to excite vexatious litigation, or from other bad motives, as in 11 Mass. R. 549. The views and intention of the parties are the test of the fairness, and of course of the legality of the transaction, and even the tenant’s plea does not charge any bad intent. Indeed it would not be too much to contend, that by the old authorities a fair purchase was lawful. F. N. B. 172 F ; 2 Inst. 208, 209 ; Godb. 81, 82. In Anc. Charters &c. 142, judgments and executions are forbidden to be sold ; from which we may infer that previously such sale, as well as the sale of other rights and choses in action, was lawful.
    
      In support of the replication, in point of form, he cited 1 Chit. PI. 593, et seq.
    
    
      Stearns, in reply.
    It is immaterial whether the deed of Brinley to the company is void or not; the whole agreement between them is illegal, and this action was brought in pursuance of that agreement, and is itself a part of it. If then this action can be maintained, the law is directly lending its aid to enforce a contract, and to carry into effect an agreement, which itself has forbidden ; for if the demandant shall recover, it will remove the only difficulty which prevents the execution of the agreement. It is very clear, that if a promíssoiy note had been given by the company to Brinley to secure the payment of the consideration for the conveyance, no action could have been maintained on that note; and if Brinley recovers the land, the company cannot by law eject him. If then this illegal agreement cannot be enforced to the damage of one of the guilty parties, a fortiori it should not at the expense of the defendant, who is innocent.
    The plea sets forth by proper averments, who are the real parties to the action and to an illegal and oppressive contract and combination against the tenant, and the Court will regard, not merely the party to the record, but the real agents in the suit.
    The tenant pleads among other things a conveyance by the demandant to a third person. This had been held to be a good plea to a writ of entry. Wolcot v. Knight, 6 Mass. R. 419. It is true that to such a plea the demandant may reply that nothing passed by the deed, but that is not replied in the present case ; and the only question is, whether the plea, supposing the facts stated in it to be true, is good.
   Parker C. J.

delivered the opinion of the Court. [After stating the pleadings.] We think the replication is ill either in substance or form. If the facts averred in it are in point of law a sufficient avoidance of the bar, then it ought to have concluded with a verification, in order that the tenant might deny those facts and put them in issue. The plea in bar avers facts which undenied undoubtedly constitute an unlawful transaction between the demandant and the manufacturing company. It is exactly the case described in 32 Hen. 8, c 9, of buying a pretended title, knowing of an adverse possession under a claim of title. That statute, though never reenacted here as in New York, has been adopted in this commonwealth in practice, and must therefore be considered as part of the common law here. The replication intends to avoid the bar, by showing a purchase of another parcel of land of which there was no adverse possession at the time of the transfer, and the purchase of this parcel as necessary to the proper use of the other. Now admitting this to be a sufficient avoidance of the bar, it is clear that the tenant ought to have had opportunity to answer or deny it, which he is precluded from by the traverse ; and for this cause, if no other, judgment should be for the tenant, if the plea is a sufficient answer to the declaration. We are inclined to think, too, that the replication is bad in substance as an answer to a good plea in bar; acknowledging a transaction which amounts in law to maintenance, or at least the buying a disputed title, knowing of an adverse claim and possession. The fact that the premises so situated were necessary to the profitable use of another tract which the demandant had sold to the manufacturing company, would be no excuse for the unlawful act. If the sale of that of which he was in possession could not be effected without the sale of that which was claimed and possessed by another, he should have postponed his sale until he had evicted the tenant by lawful process, instead of selling the dispute in order to make sale of that which he had

lawful right to convey.

We come therefore to the consideration of the plea in bar, .o see if the facts which it contains are a sufficient answer to the declaration. As before observed, it sets forth an unlawful bargain and conveyance of land in the possession of another claiming title, but it shows no title to the land in the tenant. It alleges the seisin of Fletcher in the year 1816, but does not state whether that seisin was lawful, or founded upon a disseisin of the demandant. The latter is to be presumed, for the plea must be taken most strongly against him who makes it. The whole of the defence, as stated in the bar, amounts to this: — that true it is the demandant was disseised as he declares, but he has no right to recover possession, because he has attempted to part with his right and • interest, and that under circumstances which render his conveyance illegal, and the deed null and void. The obvious conclusion from these premises would be, that the demandant’s title remained as before, and that he should recover possession against the disseisor or any claiming under him.

But it is stated that the present suit is brought at the instigation of the grantees in that deed, and at their instance and expense, with a view to carry into effect the unlawful bargain, and it is supposed that on this account the action ought not to be maintained.

It would certainly seem that the law ought not to lend its aid to the parties to an illegal contract, to carry it into execution, and yet there are difficulties in maintaining this plea which we see not how to overcome.

To establish such a defence would be in fact to transfer the. title of the land from the demandant to the tenant, by way of punishment for the attempt to convey it unlawfully; but neither the statute of 32 Hen. 8, nor the common law, establishes such penalty ; nor do we find that either in England, where the offence probably was common at and after the passing of the statute, or in this commonwealth, where the principles of that statute have been so far adopted at least as that the buying of disputed titles under circumstances which show an intent to disturb men in their possession has been held criminal, or in New York, where the legislature have reenacted the statute of 32 Hen. 8 almost in its very words, such a consequence has been attributed to the offence. B) the statute itself the culpable parties are made subject to forfeiture, the one, of a sum equal to the price which he contracted to receive, and the other, of the value of the land so attempted to be purchased, and the conveyance is rendered bull and void. The title is left unaffected by the transaction. See St. 32 Hen. 8, c. 9. In New York, under their statute, there have been prosecutions for the penalties prescribed, and the deeds passed to consummate the bargain have been con sidered null ; but no instance has occurred, in which a disseisor has been held to make a good defence against the disseisee, by showing that he bad unlawfully bargained away his land. On the contrary, it is held in that State, that if a person out of possession conveys land held adversely by another, such conveyance is void for maintenance, and the title to the land remains in the grantor, though he is subject to the penalty in the statute. In a case preserved in a manuscript of the chief justice in 1802, it was said, that “ the whole court concurred in opinion, that a conveyance of land, by a person against whom it was adversely held, at the time of making it, tv as void ; but that the grantor was not devested of his original right by such conveyance.” Jackson ex dem. Jones et al. v. Brinckerhoff, cited by the chancellor in Williams v. Jackson, 5 Johns. R. 500. Clinton, senator, said, “ As to the assertion, that this grant operates as an extinguishment of the title, I consider it as a mere dictum, and entirely groundless. — By statute, in this case, a penalty, equal to the value of the land, is incurred. Another punishment is now contended for ; a forfeiture of the land itself; a doctrine totally unsupported by law, and which would produce the most mischievous consequences. It would encourage intrusion upon property, clog and embarrass alienations of real estate, and open a wide door to fraud and injustice.” Williams v. Jackson, 5 Johns. R. 505. The very point came before the Court of Errors in that case. The declaration contained three counts, on three demises : the first, by Tibbits ; the second, by the sons of Bradt; and the third, by the heirs and representatives of V. P. Douw, who was the heir of Jonas Douw. The lessors in the last count having obtained title from the other claimants, conveyed to George Tibbits, for the use of whom the action was brought. The defendant showed title under another patent, dated 1786, and that he had been in possession ,en years. Tibbits’s deed from the heirs of Douw was dated 1803. It was strongly insisted, that the making of this con yeyance barred the right of Douw to recover, but this was overruled. It never appears to have been considered there that a disseisor might maintain his possession by showing that the disseisee had violated the statute, but the remedy has been by action for the penalty. So also in England. In this commonwealth there never has been such a statute : nevertheless such transactions have been always deemed unlawful; though it may be doubted whether an action will lie for the penalty, there being probably no case on record of such an action. The guilty parties here would be punished on indictment by fine and imprisonment, as at common law. To say that the person in possession should hold the land against the claim of the owner, because he had committed an offence, would be to impose a punishment not provided for by the statute of Henry, nor known by the common law.

In this commonwealth the offence of buying and selling land whereof there is an adverse possession at the time of tlye bargain, has rarely been brought before the courts. But one case, in which it has been the subject of animadversion directly, appears in our Reports, and this will presently be considered. A case not reported, however, happened in the county of Cumberland before the publication of the Reports, which, if the traditionary account of it be true, would go far to support the plea in bar in this case. The case was Drinkwater v. Martin, a real action, and it is said that the tenant to the writ was allowed to show, under the general issue, that the demandant had executed deeds of the premises to a stranger to the action, purporting to convey all the right of the demandant, he not being in possession, whereupon the action was defeated. A brief statement of this case is contained in Mr. Dane’s Abridgment, vol. 6, p. 743 ; which is probably correct, as he practised at that period in Maine, and is known to have taken minutes of all important decisions. I think however he has mistaken the names of the parties to the suit. He states it to be a case between M} Curdy et alv. Elioin et al. ; a writ of right ; that it- appeared at the trial, “ that one Drinkwater had purchased of the plaintiffs theii right and had got his deeds recorded, and that he had given bonds that the plaintiffs should be at no costs in the suit The court nonsuited the plaintiffs because, as was said, the real plaintiff was a mamtainer, though the plaintiffs had not by law parted with their rights, because not in possession when they gave the deed.” Mr. Dane adds—“ (¿acere, as to these proceedings, especially the nonsuit. All was done suddenly, and • there was no prosecution. See 8 Johns. R. 228, where such matters seem to have been better understood.” The case was decided in 1797.

Perhaps Mr. Dane’s opinion of this case, if it stood alone, however highly we respect such authority, would not justify us in denouncing this case as wrongly decided ; but in the case of Wolcot et al. v. Knight et al., in the same county, in the year 1810, it was brought directly before the Court and was entirely overruled. Chief Justice Parsons, in behalf of the Court then sitting, referring to the case commented upon by Mr. Dane, says the decision was made in haste during a jury trial, when the judges were denied any means of consulting books, or of deliberation on the point : and it must be overruled, as repugnant to the established rules of evidence, applicable to the trial of actions of entry on the general issue.” He proceeds to say, that “ it was said by the judges in that case, that the purchase of a dormant title, from a party not seised, by a stranger out of possession, was an offence at law. This is true, when made wittingly to disturb the tenant in his possession. The parties may be punished for the offence, and the conveyance is void; but there is no scintilla of law, that a man, having a right to recover in a real action, is barred by the execution of a deed, purporting to be a conveyance, but by which his right did not pass unless by way of estoppel as between the parties to the deed.

The principle thus laid down is decisive of the question now before ns, and it seems to conform to the spirit of the cases in New York on the same subject. If in England and New York, where there are express prohibitions by statute against this sort of maintenance, the right of recovery by a disseisee has never been questioned, surely in this commonwealth, where the prohibition rests altogether on common law derived from the ancient English statute, to uphold the bar in the present case would be entirely an interpolation.

The cases cited by the tenant’s counsel, except those which go to show that the facts detailed in the plea amount to maintenance, which is not denied, are, we think, inapplicable . to the question. They prove generally, that a man suing for the fruits of a vicious or unlawful contract, shall not be sustained in court. As in the case of. goods sold to one intending to smuggle them into the country, in fraud of the revenue, the vendor knowing of the intent of the purchaser, and other cases of similar import, the vendor shall not recover, because he aids and abets in the unlawful act. The action is between two guilty parties, and neither shal. prevail in law in an action against the other. But in the case, before us, the owner of the land does an act which is unlawful and void. He is subject to punishment, but a forfeiture of his land makes no part of the punishment. Nor can the tenant who has wrongfully dispossessed him, in any way acquire a right to the land by reason of the offence committed by the owner. In the cases cited the plaintiff proceeds on a contract founded on a violation of law ; in the case before us there is no contract ; the demandant complains of a wrong done him by the tenant, and the tenant would purge it by showing that his adversary had done wrong to the public. There is neither reason nor logic in this. True it is, the tenant avers that the action is brought for the benefit of the party to the unlawful contract, and that he will immediately avail himself of the fruits of this suit, and thus defeat the intent of the- law ; but the law declares the deed void, and cannot anticipate that the parties will hereafter make it effectual. The grantees can never set it up as the evidence of a conveyance to them ; if it operates at all, it can only be by way of estoppel against the grantor. If they should have to bring a suit against the tenants in their own names, the deed will be inoperative. Any after deed from the grantor to any other person will convey his title after he shall have obtained possession, notwithstanding this conveyance.

The case of Swett et al. v. Poor et al., cited by the tenant’s counsel, has no reference to the case in discussion. It decided only, that a party guilty of the offence of maintenance •annot recover against the other party to the same transacti on, damages for intercepting the conveyance thus unlawfully made. It is in that case stated, that maintenance is an offence oy common law, and is punishable on indictment.

The counsel for the tenant has cited the case of Wolcot et al. v. Knight et al. to prove that in an action of entry the tenant may in defence plead in bar a conveyance of the land by the demandant; the same case shows that to such a plea the demandant may reply that nothing passed by the deed.

Tire present plea in bar is grounded upon the nullity of the deed from the demandant, so that there is nothing to show the title out of him. It is^admitted by the tenant’s counsel, that he has been unable to find any precedent for the plea which he has made in this case. The cases cited show that where-such a defence in a real action has been attempted, it has failed. This action is not brought, so far as we can understand from the record, to enforce an unlawful contract. The legal effect of a recovery is only to restore to his possession, one who has been tortiously ousted of it. The consequences of the recovery between other parties, and the state of the title under the deed averred to be unlawful, and which from the facts stated appears to be so, are considerations which do not belong to this case.

Second plea adjudged bad. 
      
       See Somes v. Skinner, 3 Pick (2d ed.) 61, n. 2; Cleverley v. Whitney, 7 Pick. 36; 2 Chitty on Crim. Law, (3d Amer. ed.) 234, n. C ; 4 Kent’s Com. (3d ed.) 446 to 450. In some States a transaction of this nature is not held unlawful. Hadduck v. Wilmarth, 5 N. Hamp. R. 181; Whittemore v. Bean, 6 N. Hamp. R. 47 ; Stoever v. Whitman, 6 Binney, 420; Cressen v. Miller, 2 Watts, 272; Aldridge v Kincaid, 2 Littell, 393; Frizzle v. Beach, 1 Dana, (Ken.) 211
     
      
       Where a writ of entry, brought by the grantee in the name of the grantor to recover land of which the grantor was disseised at the time of the conveyance, was commenced without the knowledge of the grantor, but was prosecuted with his consent, the court refused to order a nonsuit. Cleverley v Whitney, 7 Pick. 36.
     