
    James Poyas vs. Eliza B. Wilkins.
    
      Vendor and Vendee •— Failure of Consideration — Champerty.
    
    Ia an action on a bond given for the purchase money of land, it is no defence to show that part of the land was, at the time of the conveyance, in the possession of and claimed by a third person under a conveyance from the obligee, but which did not, in fact, include the disputed parcel, and that such third person had acquired title by subse-' quent adverse possession — it not being further shown that the defendant’s neglect to sue such third person was occasioned by the obligee.
    A conveyance by one out of possession is not void for champerty.
    JBEFORE WITHERS, J., AT CHARLESTON, MAY TERM, 1859.
    The report of his Honor, the presiding Judge, is as follows:
    “ The action was debt for balance of four hundred and twenty-six dollars and eighty-nine cents, with interest, from February 15, 1849, claimed as due and payable on a bond executed by the defendant to the plaintiff, ou the 1st day of November, 1845; penalty, eight thousand dollars; condition, four thousand dollars; and payable in three annual instalments.
    
      “ The bond was given for a house and lot purchased by defendant from plaintiff, the conveyance thereof bearing even date with the bond. On the 8th of August, 1849, the bond was assigned to Thomas Bennett, and to him the defendant made two payments, to wit.: 15th of February, 1849, two thousand five hundred dollars; 17th of January, 1849, five hundred dollars; and Bennett re-assigned it to the plaintiff 12th of June, 1849.
    “ The defence rested upon what is called a discount, being an alleged failure of consideration in a deficiency of land conveyed, stated at two feet on Lamboll street, and five feet on the back line, valued at five hundred dollars; and a balance of seventy five dollars eighty-two cents was claimed, in pursuance of this statement, for the defendant.
    “On the 15th of February, 1836, this plaintiff purchased from the late Judge Colcock, a parcel of land, described thus: situated, &c., south side of Lamboll street; on the front line, one hundred and twelve feet, which is bounded by Lamboll street; on the east line, which is bounded by land belonging to the estate of Joseph Yates, one hundred and thirty-four feet two inches; on the west line, which is bounded by lands of James Shoolbred, one hundred and twenty-three feet nine inches; and on the south line, which is bounded by lands of Mrs. Susan McCall: and the conveyance called for a plat annexed. The parcel conveyed had buildings upon it.
    “February 27, 1844, Poyas, the plaintiff, conveyed a parcel of the foregoing lot, the eastern portion, to Thomas 0. Elliott, trustee of Mrs. Edwards, and described it thus: ‘ Bounded north on Lamboll street; east on lands of Mrs. Jenkins; west on lands of the said James Poyas; south on lands of Lightwood; measuring in front forty-four feet, and forty-four feet on the south side; one hundred and twenty-eight feet on the west line, and one hundred and thirty-four feet on the east.’
    “November 1, 1845, the plaintiff conveyed, of the same land bought by him from Judge Colcock, a parcel described as follows: ‘ All that house and lot, situate, lying, and being in the city of Charleston, butting and bounding to the north on Lamboll street, to the east on lands of Mrs. Edwards, to the south on lands of Mrs. Eliza Smith, and to the west on lands of Kobert M. Allen, Esq.; measuring and containing on Lam-boll street sixty-seven feet eight inches; on the west line one hundred and twenty-three feet nine inches; on the east line one hundred twenty-nine feet; and on the south line sixty-eight feet, more or less.’ (I do not know what the punctuation of tlie original deed of conveyance is; it is possible that might have some influence, more or less, upon the question, whether those words, 1 more or less,’ found at the close of the description apply to any clause except that describing the south line.)
    “ At the time that Mrs. Edwards and Mrs. Wilkins purchased, a fence, extending from Lamboll street to the back line, divided the lot purchased from Judge Colcock, and it yet remains in the same position it then occupied. It was very near the house purchased by Mrs. Wilkins, this defendant, but not on a line with the wall of it. It was from twelve to fourteen inches on Lamboll street, beyond the point where the forty-four feet, sold to Mrs. Edwards on that street, terminated ; and five and a half, or six and a half feet on the back line beyond the point where the forty-four feet, sold to Mrs. Edwards on that line, terminated. This made the triangle which the defendant said she had lost, and Mrs. Edwards had gained, constituting the deficiency for which she claimed an abatement of five hundred dollars; and she imputed this loss to the plaintiff; on the ground that he had put Mrs. Edwards in possession, and, therefore, deprived himself of it, before the sale to the defendant, and never did put the defendant in possession; and another ground was announced, to wit, that the plaintiff had caused the defendant to delay the assertion of her title until the possession of Mrs. Edwards to the space in the triangle had ripened into a right.
    
      “ On the 6th of November, 1845, (the fifth day after the date of the conveyance to defendant,) Pinckney, at the instance of defendant, surveyed the premises sold to her, according to her deed, and laid down a yellow line as that which divided the premises of Mrs. Edwards and the defendant. Poyas was present, so was Mr. Grimball, Mrs. Wilkins’ brother. At that time no line of division was marked on the ground. Elliott was called on to be present, but was too busy to go. Pinckney laid out forty-four feet for Mrs. Edwards on Lamboll street, which Poyas said he had sold to her, and he made that the fixed and beginning point. He made his plat on the 8th of November. Mr. Grimball said, that on the evening next succeeding the survey, Elliott called on him, and objected to the line. Sometime, he. supposed soon afterwards, he made known to Poyas that Elliott objected, and Poyas said Elliott- was claiming what did not belong to him, for he had sold Mrs. Edwards forty four feet, and the rest was in line, and that he had sold to the defendant; that he ‘reserved the space’ to add to the lot sold to Mrs. Wilkins, as connected with the eaves of the house, or opening the window blinds.
    “ Two or three years after the date of the bond, and after sundry payments had been made, probably all that ever were made, the defendant’s son, who had negotiated the trade with Poyas originally, went to him and informed him that Elliott said the land belonged to him, i. e., up to the fence, and that his mother would look to him to put her in possession; that he ought to do it, and that she had bought property, not a law-suit. Poyas answered, that Elliott was too good a lawyer not to know that ‘more or less’ applied to an inch or two, not to feet — that he was foolish, and that his mother must claim it of Elliott. Mr. Petigru advised Mr. Grimball that Mrs. Wilkins should put her fence on the line made by Parker, and stand suit; but Grimball did not say when this advice was given. On the 7th July, 1850, Mr. Petigru announced to Walker, the representative of Poyas, as follows : ‘ So much of the bond as has not been paid, has been retained to abide the settlement of the question.’ If not adjusted, he said, the defendant would have to sue Mrs. Edwards, and vouch Poyas in the litigation.
    “ I declined to hear the testimony of Mr. Thomas 0. Elliott, deceased, as reported by Judge Glover in the brief of this case, as it was sent to the Court of Appeals. But I allowed oral testimony of what he had sworn, and thereupon Mr. James L. Petigru was sworn; and against objection for tbe plaintiff, I permitted him to say, that after an interview with Grimball, he had one with Elliott, and after hearing what Elliott had to say, he gave up the idea of a suit by Mrs. Wilkinsv; saw Walker, as representative of Poyas, and told him, as he repeatedly did, that the defendant would pay all but what would indemnify her if she failed to get possession of the deficiency.
    " Such is the evidence in the cause, except what related to opinions as to the value of the triangle in question, and the grounds of them, and the damage the defendant ought to suffer by the loss of it. Such valuation ranged' from five hundred dollars, the estimate of defendant’s son, to very little, according to Lazarus, a dealer in real estate. It seems unnecessary to report more upon this branch of the case.
    ’"It was assumed throughout, as it was in the former trial, that Mrs. Edwards had obtained right to the triangle; though this question has never been tried between her and Mrs .Wilkins. Allowing that, I did hold, that the same had not been conveyed by Poyas to Mrs. Edwards; that she could not have acquired title to it in the period of less- than two years, which intervened between the date of her conveyance and that to Mrs. Wilkins; that the conveyance to Mrs. Edwards vested in her no more than forty-four feet, front, and the same, rear; that when the conveyance to Mrs. Wilkins was delivered, I saw nothing to prevent her from claiming up to Mrs. Edwards’ line, fixed at the termination of the said forty-four feet, where she might have planted her fence, as indeed Mr. Petigru had once advised she should ; that the claim set up by Mrs. Edwards did not disseize or divest Poyas before he conveyed, or Mrs. Wilkins after he conveyed; that though it was difficult to see evidence that Mrs. Edwards was in possession, since she had never occupied the' triangle, yet, if she should be accounted as in possession when conveyance was made to Mrs. Wilkins, the latter was not estopped of her action, until such possession, adverse in its character, had endured long enough to work that effect. So that,
    2d. As Mrs. Wilkins could have brought her action; as she alone (the fee being vested in her) could maintain the action ; as she could have maintained it successfully upon a proper location of the deeds made by Poyas to the parties, if she laid by until she lost the right to bring her action successfully — and this delay was not caused by Poyas — she could not avail herself of any defence against the claim of the plaintiff.
    
      “ 3d. As before intimated, I did not allow the testimony given by Mr. T. 0. Elliott, deceased, given at the former trial, to be read from the report of the Presiding Judge, but I did not prevent a witness being sworn to state what he did say.
    “ Verdict for plaintiff, for balance due on the bond.”
    The defendant appealed on the grounds:
    1. Because his Honor charged the jury that the plaintiff’s deed conveyed the whole lot of land to the defendant, with full ownership over the same, even though another party might have been in possession of a part claiming the ownership thereof.
    2. Because his Honor charged the jury, that the defendant could, and should have, brought the suit against Mrs. Edwards, unless her delay was caused by the plaintiff; whereas, he should have charged that it was the duty of the plaintiff) at his own cost, either in his own name or in the name of the defendant, to have taken such steps as would put defendant in peaceable possession.
    3. Because his Honor refused to allow the Judge’s report of the testimony given at the former trial of the same case by T. 0. Elliott, Esq., who has since died, to be read.
    
      
      Petigru & King, for appellant.
    In the report of his charge, his Honor says: “ That though it was difficult to see evidence that Mrs. Edwards was in possession, since she never occupied the triangle, yet if she should be accounted as in possession when conveyance was made to Mrs. Wilkins, the latter was not estopped of her action till such possession, adverse in its character, had endured long- enough to work that effect.”
    The first ground of appeal involves the question, whether the legal title to the strip of land and the right to sue were in the vendee ?
    Seizin is the old feudal law term for possession, neither more nor less. Every person in such possession of land as enabled him to take the profits and rents, to equip himself as a soldier to follow the feudal lord, was seized. This term was of course restricted to freehold estates, as tenants for years held not of the lord, but of his freehold tenant. Every person put out of such .possession was said to be “ disseized.” The right of a party who is out of possession of land, is a chose in action, and cannot be assigned at law. That this was so by the common law, can hardly be disputed, and in the United States, at least wherever the statute of 82 Henry 8th has been enacted, it is held to be still the law. ' But it is said that this portion of the common law, and this statute, never were of force in South Carolina, and the case of Simms vs. De Grajfenreid is quoted. That case can be scarcely said to be reported. It is startling to think, that a few words of the reporter, or even the decision of a court, can decide that a statute, solemnly enacted, was never of force. A court which makes such a decision is a legislature. The same reasons which formerly justified the disseizor in refusing to interplead with the assignee of the disseizee still exist. The land-shark is still as obnoxious to the welfare of the community as ever. The precise point decided by Simms vs. De Graff enreid, does not appear. Where the assignee accepts the assignment of the chose in action, he is estopped from denying its validity, and so is the disseizor, according to the case quoted. But the question here is not whether the disseizor can refuse to acknowledge the validity of assignment accepted by the vendee of the disseizee, but whether the court will force the vendee to accept the assignment of the chose in action in lieu of the land, though all the while protesting and refusing to purchase a law suit — a novel doctrine — as contrary to justice as to precedent.
    But even admit that the vendee is found to be content with the assignment of the right to sue, and that the suit must be instituted in her name, the strongest point is yet contained in the second ground of appeal, viz., that it was the vendor’s duty to institute the suit either in his own name or the name of the defendant. The deed of conveyance contains the statute warranty which includes the five covenants. TEe vendor covenants that he is seized in fee. The fact assumed in the instructions is, that he is out of possession, i. e., dis-seized ; this covenant is therefore broken. He covenants that the vendee shall quietly enjoy; which covenant is broken as soon as made, for the vendee could not quietly enjoy, while another party was in' possession, claiming under a disputed boundary in the deed of the vendor. Now, upon these broken covenants the vendee could certainly recover, and she gave the vendor full notice that a discount would be set up. The vendor was bound by his covenants to put the vendee in quiet possession, and it matters not in whose name the suit was to be brought. It simply resolves itself into a question of costs of the suit in ejectment, and it has been already decided that such costs are included in the damages of a broken covenant. If, therefore, the vendor chose to lie by, it was his own pure negligence, and he alone should bear the consequences.
    They cited 32 Hen. 8th, ch. 9, 2 Stat. 472; 4 McO. 253 ; Partridge vs. Strange, Plowd. 88, 89; Bettisworth's Case, 2 Rep. 810, a; Cruise Digest, Tit. 22 ch., p. 11, g. 15 ; Sheph. Touch, ch. 9, p. 213 ; Lampet's Case, 10 Rep. 48, a; Coke on Littleton, 214, a; 11 Mod, [152] ; 2 Black. Com. [290] ; Smith vs. Cook & Norris, 2 McM. 58; Rawle on Covenants, p. 65-68; Ibid. 69,70; Ibid. 76; JacJcson vs. Demont, 9 John. R. 57,58; Note to page 383, S. L. Cases; 2 Sug. Yen. & Purch. 516, upon Jerrets vs. Weave; Dart on Yendors, 368; Jeter vs. Glenn, 9 Rich. 378.
    
      Yeadon, contra,
    cited 1 Bay, 107; 2 Bay, 133; 4McC. 253.
   The opinion of the Court was delivered by

Johnston, J.

It certainly would surprise the great body of the landed proprietors of South Carolina, if the Court should sustain the appellant’s position, that a conveyance by one out of possession is void for champerty.

It is true, that the Statute 32 Henry VIII., ch. 9, by which the sale of pretensed titles -is made an offence, is included in the table of English Statutes made of force in this State. But as long ago as Sims vs. De Graffenreidt, it was held that one having title to lands, though never in possession, may convey without previous entry, and that the common law on that subject was not of force in this State ; and though the Statute of Henry is enumerated among the statutes made of force, it is inapplicable under our usages. And it was said, that from the earliest times, in this State, when one has good title to lands, he might convey them to a stranger, or bring action against any one in possession, without entry by himself, or any previous possession by his ancestor, or ever having received rent. To the same effect is the reasoning of Mr. Justice Waties in Rugge vs. Ellis, which was tried in 1790; and again 1798, in Brown vs. Frost, the same eminent Judge, having the concurrence on this point of Justices Burke and Bay, said, “It was contended that this-action was not maintainable, because the plaintiff had lost his right of entry ; having never brought action or made entry on the land, either by himself or by those under whom he claimed for more than sixty years; and that the want of an adverse possession during that time, did not excuse him.” “Our action of ejectment, or the action of trespass substituted in the room of it, is adequate to every end, and possesses all the advantages of every real action in England, from an ejectment to a writ of right; and neither a descent cast, nor a want of entry, nor the omitting to bring an action within five years, will be a bar to it, if there has been no adverse possession running against it. This is known to' be the constant practice: and we see in court, every day, lands recovered which are claimed under ancient grants, of which the plaintiffs never had possession.” I will add that no professional man in South Carolina has any evidence from her records or from the practice, that an entry was ever held to be necessary.

We do not stand alone on this doctrine, — see the case of Barr vs. Gartz, 4 Wheat. 213.

We approve the instructions given by the Circuit Judge, as reported by him: and it is needless to say that so far as the representations made of them in the grounds of appeal, may differ from his report, we must adhere to the report.

The only complaint left relates to the exclusion of the notes of Mr. Elliott’s testimony taken on a former trial. Whether this was competent evidence or not, it is not material to decide ; it is sufficient that the appellant had the benefit of Mr. Elliott’s evidence through Mr. Pettigrew.

We are all of opinion that the motion for a new trial should be refused, and it is ordered accordingly.

Motion refused.

O’Neall, C, J., and Wardlaw, J., concurred.

Motion dismissed. 
      
      
         2 Stat. 472.
     
      
      
         4 McC. 253, decided in 1827.
     
      
      
         1 Bay, 107.
     
      
      
         2 Bay, 133.
     