We are then brought to the consideration of the principal
question in the case -- whether the deeds to the plaintiffs were
void for champerty.
In many parts of the United States, and probably in Maryland,
and consequently in the District of Columbia, the ancient
Page 167 U. S. 630
English statutes of champerty and maintenance have either never
been adopted or have become obsolete so far as they prohibited all
conveyances of lands held adversely. 4 Kent, Com. 447;
Roberts v.
Cooper, 20 How. 467;
Schaferman v.
O'Brien, 28 Md. 565;
Matthews v. Hevner, 2 App.D.C.
349.
But according to the common law as generally recognized in the
United States, wherever it has not been modified by statute, and
certainly as prevailing in the District of Columbia, an agreement
by an attorney at law to prosecute at his own expense a suit to
recover land in which he personally has and claims no title or
interest, present or contingent, in consideration of receiving a
certain proportion of what he may recover is contrary to public
policy, unlawful, and void as tending to stir up baseless
litigation. 4 Kent Com. 447, note;
McPherson v. Cox,
96 U. S. 404,
96 U. S. 416;
Stanton v. Haskin, 1 MacArthur 558;
Johnson v. Van
Wyck, 4 App.D.C. 294;
Brown v. Beauchamp, 5 T. B.
Monroe 413;
Belding v. Smythe, 138 Mass. 530;
Stanley
v. Jones, 7 Bing. 369, 377;
s.c., 5 Moore & Payne
193, 206.
The trust declared in the deed under which these plaintiffs
claim title is to take possession of the real estate, to bring all
suits necessary for that purpose, to pay off outstanding claims if
deemed by the trustees to be expedient, and to do everything
necessary to vest in them a perfect and unencumbered title and the
possession of the lands, and after getting, with or without suit,
the title and possession, to sell and convey the lands. The deed
states that "it is distinctly understood between the parties" that,
out of the purchase money received,
"Leo Simmons, one of the trustees or parties of the second part,
shall retain 33 1/3 percent, or one-third, after paying all
expenses, costs, and expenditures of the said parties of the second
part in the execution of the trust out of the same;"
that the other two-thirds of the purchase money, "clear of any
costs or charges whatever," shall be paid to the heirs of Ann
Bartlett, their heirs or assigns, according to their respective
interests, and
"that, should Leo Simmons die after suit has been begun for the
recovery of any said property, and before a
Page 167 U. S. 631
settlement shall have been made, then in that case the court
having jurisdiction shall appoint a trustee to act in his stead,
and pay over to the heirs or assigns of the said Simmons such
profits as he would have been entitled to after paying said costs
and expenditures."
The deed clearly expresses the intention of the parties that
Simmons shall receive one-third, and the grantors two-thirds, of
the gross proceeds of the real estate conveyed. The intention that
all costs and expenses of obtaining title and possession of the
lands, by suit or purchase or otherwise, shall be borne wholly by
Simmons, and in no part by the grantors, is clearly shown, in the
first place, by the stipulation that he shall receive one-third of
the proceeds "after paying all expenses, costs, and expenditures
of" the trustees in the execution of the trust "out of the same" --
evidently meaning out of his third part. But any possible doubt
which might arise upon this clause, taken by itself, is removed by
the next clause, which stipulates that the two other thirds of the
proceeds shall be paid to the heirs of Ann Bartlett, "clear of any
costs or charges whatever," as well as by the final clause, which
stipulates that, should Simmons die after bringing suit and before
making a settlement, there shall be paid to his heirs or assigns
"such profits as he would have been entitled to after paying said
costs and expenditures."
Upon the nature and effect of the agreement made by the attorney
with the grantors in this deed this Court concurs in the opinion
expressed by the Court of Appeals of the District of Columbia, as
follows:
"He agreed to pay the costs of the litigation. He agreed to take
as his compensation a part of the land which was the subject of the
suit, or a part of the proceeds of sale of it, which amounts to the
same thing. And his compensation was not a fixed sum of money,
payable out of the proceeds of sale, but a contingent share of the
very thing to be recovered, or of the money that might be received
by way of settlement or compromise, and the character of the
enterprise, on the part of the attorney, was so plainly a
speculative one that in the deed the net results to him are
mentioned as 'profits.' If this be not champerty, we fail to
see
Page 167 U. S. 632
wherein there can be champerty. . . . We must regard an
agreement by any attorney to undertake the conduct of a litigation
on his own account, to pay the costs and expenses thereof, and to
receive as his compensation a portion of the proceeds of the
recovery, or of the thing in dispute as obnoxious to the law
against champerty, and that this was the character of the
arrangement in the present case we are entirely satisfied. The very
thing in dispute was conveyed, or sought to be conveyed, in advance
to the attorney and an associate for the express purpose of
enabling the attorney to conduct the litigation on his own account
and at his own cost and expense, and in consideration of this he
was to retain at the end of the litigation one-third of what had
been conveyed to him, and was to account to his clients for the
other two-thirds. This was certainly an agreement on his part to
take as his compensation a part of the thing in dispute, and it
does not alter the case at all that the land, when recovered, was
to be sold. That was only the practical mode for a division of
proceeds between the parties to the enterprise."
6 App.D.C. 283-284.
The deed, as appears upon its face, having been made to carry
out the champertous agreement, was unlawful and passed no title,
and the joinder of Peck as co-trustee in the deed could not give it
validity.
The result is that this action cannot be maintained by the
trustees claiming under the deed, although a similar action might
have been maintained by the grantors in their own names.
Burnes
v. Scott, 117 U. S. 582,
117 U. S. 590,
and
Hilton v. Woods, L.R. 4 Eq. 432, 439, there cited.
Judgment affirmed.