Roller v. Murray

• Decision Date: 21 November 1907
• Citation: 59 S.E. 421,107 Va. 527
• Parties: ROLLER. v. MURRAY et al.
• Court: Virginia Supreme Court

59 S.E. 421

107 Va. 527

ROLLER.

v.MURRAY et al.

Supreme Court of Appeals of Virginia.

Nov. 21, 1907.

1. Equity—Bill—Amendment—Time.

If plaintiff misdescribes in bis bill the contract sued on, or omits to mention a subsequent modification or a re-execution thereof, he can correct the error or omission by amendment before an answer is filed or evidence is taken; and even, after evidence is taken, he may be permitted to amend to conform to the proofs.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 19, Equity, §§ 552-369.]

2. Same — Demurrer — Hearing and Determination—Intendment of Bill.

Though a supplemental bill was intended to negative the idea that certain letters formed the original contract involved, the court need not on demurrer give effect to such intendment, if the contrary appears from plaintiff's exhibits, or from the case as a whole.

3. Champerty and Maintenance—Contract with Attorney.

A champertous contract was formed by a letter to an attorney stating that his client would give him one-fifth of the net proceeds of lands to be recovered, the attorney to pay all necessary expenses of litigation, so that the client should be required at no time to pay any money in the matter; by the attorney's letter accepting the proposition, on condition that the client would bear expenses outside of the state where the land was located, and would not sell the attorney's interest without his agreement to the price; and by a letter accepting the conditions—and the illegality was not obviated by a formal contract, made 2 1/2 years later after half of the land had been recovered, covering the entire land in exact conformity to the original contract, and obviously intended as a reduction to formal writing of the original agreement.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Champerty and Maintenance, §§ 22-51.]

4. Contracts—Action on—Illegality as Defense.

The rule that a stranger to a contract cannot set up its illegality as a defense does not apply when it appears on plaintiff's own showing.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 11, Contracts, § 689 1/2.]

5. Champerty and Maintenance—Contract with Attorney — Client's Grantee — Rights.

One who assumed a client's part of a champertous contract, to be bound as the client was, with the attorney's consent, and became his client, may assert the illegality of the contract in defense to the attorney's bill founded on it.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Champerty and Maintenance, § 17.]

6. Equity—Legal Relief—Right to.

An attorney cannot recover in equity reasonable compensation for his services on a quantum meruit, where his bill to recover land under a champertous contract has been dismissed, the doctrine that, when equity takes jurisdiction of a cause, it will do full justice between the parties, even to the extent of administering the common-law remedies, not applying to a bill dismissed for want of equity.

7. Champerty and Maintenance—Common Law Effective.

Whether Act Dec. 8. 1792 (1 Rev. Code 1819, p. 558, c. 144), defining champerty and prescribing its punishment, impliedly repealed by its omission from the revisal of 1849, be regarded as declaratory of or as repealing the common law, the common law as to champerty respecting the validity of champertous contracts, is still in force in Virginia.

8. Same—Laws Governing Validity.

Where champertous suits were to be brought in Virginia, the law of that state must govern the validity of the contract.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Champerty and Maintenance, § 2.]

9. Equity—Pleading—Amendment.

A bill having been twice amended, and the court having announced its decision after full argument, further amendments offered without explanation or excuse, and in the main unsubstantial and such as would not change the court's opinion, will be denied.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 19, Equity, §§ 558-560.]

10. Same—Jurisdiction.

A court of equity in Virginia cannot decree a sale of land lying in West Virginia.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 19, Equity, §§ 95-102.]

Appeal from Circuit Court, Rockingham County.

Bill by John E. Roller against Mary H. Murray and others. From a decree sustaining a demurrer denying leave to amend and dismissing the bill, complainant appeals. Affirmed.

Sipe & Harris, for appellant.

D. O. Dechert, for Chesapeake Western Co. and Pocahontas Co. Conrad & Conrad, for Mrs. Murray.

KEITH, P. In this case there was a demurrer to the bill in the circuit court, which was sustained and the bill dismissed. Appellant then asked leave to amend his bill, which the circuit court denied, and, in support of its decree dismissing the bill upon demurrer and rejecting the offer to amend, the judge of the circuit court filed two opinions, which deal with the subject in a manner so satisfactory that we feel that we cannot do better than to adopt them, making only slight verbal changes.

"This cause comes on to be decided on a demurrer filed by Mary H. Murray to the bill as amended by an amended bill filed in 1902, and as amended and supplemented by an amended and supplemental bill filed April 27, 1906.

"The grounds assigned for the demurrer go both to the character of amendment (it being objected that the new matter introduced by way of amendment makes a new and different case from that presented by the original bill) and to the merits of the case presented by the bills and the exhibits filed with them (it being insisted in this behalf that the contract set up by complainant and relied on as the foundation of the claim he invokes the powers of the court to enforce is champertous and void). In view of the opinion I have reached upon the latter question, it is hardly worth while to pass upon the question of pleading. I may say, however, that I consider the amendments made as well within the privileges of our practice with respect to amendments.

"All three of the bills assert, as the gravamen of the plaintiff's case, an equitable right to one-fifth of the purchase price arising on the sale of the Hollingsworth lands by Mrs. Murray to Geo. A. Wheelock (apparently relying on an equitable assignment, though without so naming the equity claimed), and to the benefit of the security of the deed of trust given by Wheelock upon the land to secure the purchase money; notice to Wheelock of the plaintiff's rights being alleged, and the, prayer of all the bills being that these rights be established by the court, and that the Wheelock deed of trust be enforced for plaintiff's benefit, notwithstanding the subsequent release of that deed and of Wheelock by the act of Mrs. Murray.

"The averments relative to the contract with Miss Emily Hollingsworth, which constitutes the foundation of the equity asserted and the relief sought, do vary slightly in the various bills, but not, in my judgment, in any material respect affecting the character of the claim asserted or the relief sought. They each, if valid, result in giving the plaintiff the equity he claims, to wit, a right to a one-fifth share of the proceeds of the sale of the lands. If a plaintiff misdeseribes his contract in his bill, or in his original bill omits to mention a subsequent modification, or a re-execution of the contract sued on, he can certainly correct the error or omission by amendment before an answer is filed or evidence is taken; and, even after the taking of evidence discloses the fact that the contract forming the subject-matter of the suit was different from that described in the bill, the plaintiff may be permitted to amend his bill to conform to the proofs,

"The argument of counsel was more particularly addressed at the hearing to the validity of the contract or contracts set forth in the plaintiff's pleadings and exhibits as the foundation of his claim, as affected by the question of champerty, and this question is one of more serious concern.

"I cannot agree with the idea suggested in the argument, that the whole law of champerty is obsolete and inoperative in Virginia. The latest legislative enactment relative to counsel fees is section 3201-a of Pollard's Code of 1904 (Acts 1904, p. 263, c. 147), the last paragraph of which is in these words: 'Provided, that nothing herein contained shall affect the existing law in respect to champertous contracts.' The old conception that a contract by an attorney for a contingent fee came under the ban of the law against champerty has been repudiated in many of the American states, and among these in Virginia. In very few, if any, jurisdictions, however, is it held that a contract by an attorney to undertake and carry on litigation at his own risk as to costs, in consideration of a share of the anticipated recovery, is not contrary to the policy of the law, champertous, and void.

"No question of this sort was decided or raised in the case of McDonald v. Logan, 2 Va. Dec. 687, 34 S. E. 490 (cited by counsel for complainants). That was not a suit to enforce a claim for counsel fees. It was a suit brought by the client (Logan) against his counsel to recover of them the proportion of the charges which had come out of his share of a certain fund administered by West Virginia courts in the course of litigation in that state; the belief being demanded by Logan against his counsel on the ground that under his contract with them his counsel were to receive 50 per cent. of the recovery, and out of it pay all costs and charges. The counsel had already received their compensation, and the suit was by the client to recover back a portion of it. No question of champerty was raised, but the recovery claimed was denied.

"The latest expression of our Court of Appeals on the subject of champerty is found in the case of Nickels v. Kane's Adm'r, 82 Va. 309, in which it is said: 'Champerty may be defined to be a bargain with the plaintiff or defendant in a suit for a portion of the land or other matters sued for, in case of a successful...