Barnes v. Strong

• Decision Date: 31 December 1853
• Parties: ANSEL A. BARNES AND WIFE v. WILLIAM R. STRONG.
• Court: North Carolina Supreme Court

1 Jones Eq. 100

54 N.C. 100

ANSEL A. BARNES AND WIFE

v.WILLIAM R. STRONG.

Supreme Court of North Carolina.

December Term, 1853.

A contract between a father and son, made during the pendency of a suit against the father, whereby the son agrees to defend the suit for the father, in consideration of receiving a part of the property in controversy, in case of success, is void, as coming within the prohibition of the common law against champerty.

A specific relief will be granted under a general prayer, when such relief is consistent with the specific relief prayed, and according to the admitted facts in the case.

CAUSE removed from the Court of Equity, of Rockingham County, at Fall Term, 1853.

An action of DETINUE was pending in the Superior Court of Law, of Rockingham, in the name of John C. Mingus, trustee of A. D. Jones, against one Robert Strong, for the recovery of several slaves. During the pendency of this suit, Robert Strong, and his son William R. Strong, the defendant, entered into a contract in writing, of which the following is a copy:

“Memorandum of an agreement made and entered into, this 25th day of May, 1848, between Robert Strong on the one part, and William R. Strong of the other part, all of the county of Rockingham and State of North Carolina, to wit: That, whereas, there is now pending a certain suit in the Superior Court of Rockingham, in which A. D. Jones and others are plaintiffs, and the said Robert Strong defendant, for the recovery of the following negroes namely, (seven in number,) with their increase, and the said Robert Strong feeling his inability from age and bodily infirmities, of paying the attention neeessary to defend the said suit successfully, agrees to give the said William R. Strong, for and in consideration of his services, in personally attending to the said suit, assisting to make a successful defence, and for the further consideration of five dollars, to him in hand paid, the receipt whereof is hereby acknowledged, one-half of said negroes, with their increase, after paying all expenses of said suit, said William R. Strong agrees to pay strict attention to said suit, to a successful termination. In witness whereof, the above mentioned parties have hereunto set their hands and affixed their seals, this day and date above written.

ROBERT STRONG, [SEAL.]

W. R. STRONG, [SEAL.”]

On the same day, very shortly after the execution of this instrument, Robert Strong made and published his last will and testament, and died a short time afterwards. The will was duly proved and recorded. By his will, Robert Strong gives to William R. Strong a tract of land of 327 acres, all his furniture, plantation tools, the crop that might be growing at his death, and two negroes, Anderson and Tempe. After giving his daughter Janet Roberts a legacy of fifty dollars, and to his daughter, the plaintiff Mary, a negro girl named Caroline, he directs that the negroes Tab, &c., (fourteen in number, including by name the seven mentioned in the contract which has been recited,) with their increase, and all the residue of his estate, shall be sold by his executors: that his debts be collected, and after paying the debts owing by him, and the pecuniary legacy of fifty dollars to Mrs. Roberts, the proceeds are to be divided equally between plaintiff Mary Barnes, and defendant William R. Strong: the latter, with one Burton, were appointed executors of this will: but only the defendant qualified, the other having renounced. The action of detinue (MINGUS v. STRONG) shortly afterwards, and about the time of Robert Strong's death, was decided against the defendant in the Superior Court of Rockingham; but before execution could be had against him, William R. Strong, as executor, filed a bill for an injunction, which was brought to this Court, and on the hearing of the cause, was made perpetual, by which the contest with Mingus was finally decided in favor of William A. Strong, as executor. The bill alleges, that all the property of the testator, (excepting two slaves that had been sold in his lifetime), including the slaves mentioned in the agreement with him, as well as the increase, excepting the girl Caroline, which was delivered to plaintiff, and all the other property of the testator, is held by the defendant, as executor; that the negroes have been hired out and two of them sold by the executor, and the money as well for those sold by testator, as by himself, collected by him. The plaintiff insists that the agreement entered into between Robert Strong and his son, William R. Strong, is against the policy of the law of North Caralina, and void for champerty; and that they are, by the will of their father, entitled to one half of the residue of the estate, after paying the debts and the pecuniary and specific legacies.

The prayer of the bill is for an account, and that one half of the residue of the personal estate, after satisfying the legacies to Janet Roberts, may be paid to the plaintiffs, and that the slaves not sold may be sold, and the money divided or the slaves themselves divided equally, between plaintiffs and defendant William; also, for general relief.

The answer sets forth more distinctly the reasons and considerations upon which the agreement in question was made, the great trouble and expense in defending the law suit for his father and the diligence with which he protected the interests of the estate, and he now insists that these facts, with the additional fact that he is the son of Robert Strong, the other contracting party, takes his case out of the rule of law avoiding contracts for champerty. There was much other matter in both the bill and answer, but sufficient is set forth to present the questions upon which the opinion of the Court is based.

There was replication and proofs taken as to the points not involved in the opinion: cause set for hearing, and removed to this Court.Miller, for plaintiffs .

J. T. Morehead, for the defendant ,

argued that the bill contains no prayer for particular relief; it is only that the slaves be sold or divided at their option, and then follows the prayer for general relief. There is no prayer that the conveyance of the 25th of May, 1848, be declared void. Under the prayer for general relief, the particular relief which the case requires, may at the hearing be prayed at the bar. This may be conceded, but no case can be found where the relief granted, is inconsistent with or broader than the premises, Mit. Plea. 31; 2 Madd. Chan. 171-2; Lord WALPOLE v. Lord OXFORD, 3 Ves. 416; GRIES v. FRENCH, 2 Atk. 141; FOSTER v. COOK, 1 Hawks 510.

Should the Court however be of opinion, that the particular relief prayed for at the bar can be granted, it is submitted that the facts of the case do not warrant such relief. The contract between father and son is not void as against law. Roscoe on Crim. Ev. 549; AVERY v. HULRY, 14 Pick. 174; ALLAIRE v. OUTLAND, 2 John's Ca. 52; CoVENTRY v. BAINTON, 17 John's Rep. 141.

BATTLE, J.

The pleadings in this cause present for consideration, a question which has not hitherto, so far as we know, been decided in this State. The question is, whether a contract between a father and son, made during the pendency of a suit against the father, where the son agrees to defend the suit for the father in consideration of receiving a part of the property in controversy, in case of success, is void, as coming within the prohibition of the common law against maintenance and champerty? We have given to the subject that attention to which its importance, as well as its novelty, requires, and our reflections have brought us to the conclusion, that the contract is against the settled policy of the law, and therefore cannot be upheld. Sergeant HAWKINS, whose definition of these offences is adopted, mainly, by all the later writers on the subject, says, that “maintenance is commonly taken in an ill sense, and in general seemeth to signify an unlawful taking in hand, or upholding of quarrels or sides, to the disturbance or hindrance of common right.” Maintenance in a court of justice, is “where one officiously intermeddles in a suit, depending in any such court, which no way belongs to him, by assisting either party with money, or otherwise, in the prosecution or defence of any such suit. 1 Hawk. P. C. ch. 27, Tit. Maintenance. Champerty is the unlawful maintenance of a suit in consideration of some bargain to have part of the thing in dispute, or some profit out of it.” Ibid. Tit. Champerty. These offences are of the same nature, the latter being an aggravated species of the former, and are both punishable at common law, as well as forbidden by various statutes. 1 Hawk. P. C. Title, Maintenance, Sec. 38; Champerty, Sec. 1; Roscoe's Cr. Ev. Title Maintenance, &c; 4 Black. Com. 135.

Champerty being an offence thus prohibited at common law, as well as by statute, any contract or bargain, into which it enters as one of the elements, must necessarily be void, as being founded upon an illegal consideration. Accordingly, we find that in England, the courts, both of law and equity, have refused to give effect to such contracts, and the latter courts have even given relief against instruments, which they said savoured of champerty. Thus at law it was held, that an agreement to communicate such information as should enable a party to recover a sum of money by action, and to exert influence for procuring evidence to substantiate the claim, upon condition of receiving a portion of the sum recovered,...