Reichert v. Jerome H. Sheip, Inc.

• Decision Date: 12 February 1920
• Docket Number: 1 Div. 114
• Citation: 204 Ala. 86,85 So. 267
• Parties: REICHERT v. JEROME H. SHEIP, Inc., et al.
• Court: Alabama Supreme Court

85 So. 267

204 Ala. 86

REICHERT v. JEROME H. SHEIP, Inc., et al.

1 Div. 114

Supreme Court of Alabama

February 12, 1920

Appeal from Circuit Court, Baldwin County; A.E. Gamble, Judge.

Ejectment by Jacob H. Reichert against Jerome H. Sheip, Incorporated and another. From the adverse rulings of the court plaintiff takes nonsuit with bill of exceptions, and appeals. Reversed and remanded.

Harry T. Smith & Caffey, of Mobile, for appellant.

Stevens McCorvey & McLeod, of Mobile, for appellees.

GARDNER J.

The objection to the introduction of the deed from Max Collins to the plaintiff that it was obtained under a champertous contract is a ground upon which great stress is laid in argument of counsel, and upon which, as we gather from the brief, the court below acted in excluding the same from the evidence. This deed recites a consideration of $1 and "other valuable consideration, and the further sum of $1,000 to be paid within one year from the date of said conveyance." It also provides that a vendor's lien is reserved to secure the balance of $1,000 as purchase money, as evidenced by promissory note due one year from date, and for a sale of the property upon failure to pay the note at maturity; and, further, that the grantor is to look to the land for the payment of the $1,000 note--the grantee not to be personally responsible or liable therefor.

This deed did not disclose upon its face a champertous agreement (6 Cyc. 874; Torrence v. Shedd, 112 Ill. 466; Moore v. Ringo, 82 Mo. 468; McSwain v. Atlantic Coast Lumber Co., 96 S.C. 155 80 S.E. 87), as was held to be the case in Johnson v. Van Wyck, by the Court of Appeals of the District of Columbia, 4 App.D.C. 294, 41 L.R.A. 520, cited by counsel for appellees.

The possession of defendants, under section 3839 of the Code of 1907, does not now affect the question here considered. Nichols v. Nichols, 179 Ala. 613, 60 So. 855.

The objection that the deed should be excluded on account of champerty must therefore be rested upon the testimony of Anna Leland, concerning a certain conversation had with the plaintiff. Whether this testimony suffices to establish a champertous agreement need not be here determined. The action is not brought directly upon any alleged champertous agreement, which, in any event, is here only collaterally involved. The defendants were strangers to any such agreement, if one existed, and are not in position to avail themselves of its illegality.

As to when a defendant in litigation may take advantage of a champertous agreement, the authorities are divided as is disclosed by reference to 11 Corpus Juris, 270, and 5 R.C.L. 284. The Supreme Court of Iowa, in a comparatively recent case, Cress v. Ivens, 163 Iowa, 659, 145 N.W. 325--reviews several decisions holding to the view expressed above, and this is the rule recognized in this state. In Cress v. Ivens, supra, the court points out that one of the practical reasons why the question of champerty should not be gone into when only collaterally involved is that it usually presents a question of fact, and that to inject it into the trial would be to permit the defendant (to use the language of the opinion) to "deflect the course of a trial to settle an issue in which he had no real interest, and which could not affect his ultimate liability. To open such a door would be to add greatly to the burden and confusion of litigation."

We consider the case of Sibley v. Alba, 95 Ala. 191, 10 So. 831, decisive of the question here under review, and the same principle there announced was recognized in Broughton v. Mitchell, 64 Ala. 210. See, also, in this connection, Gilman v. Jones, 87 Ala. 691, 5 So. 785, 7 So. 48, 4 L.R.A. 113. We find nothing to the contrary in the cases from this state cited by counsel for appellees. We are therefore of the opinion that the action of the court in excluding the deed cannot be rested upon this ground of objection.

Chief Justice Anderson and Justices McClellan and Thomas further entertain the view there was error in excluding the deed upon the additional ground that, if champerty affected the transaction, the agreement giving rise thereto was fully executed, under the authority of Greil Bros. Co. v. McLain, 197 Ala. 136, 72 So. 410, and Sellers v. Knight, 185 Ala. 96, 64 So. 329. As to this additional ground, the other members express no opinion.

It is further insisted that the deed should be excluded for the reason that it bore no United States revenue stamps. There is no evidence offered indicating any intent to evade the internal revenue law, or to defraud the government by failing to affix the requisite amount of stamps; and, in the absence of such proof, under the authorities of this court, the deed should not be excluded upon that ground. Bibb & Faulkner v. Bonds, 57 Ala. 509; ...