Staub v. Sewanee Coal, Coke & Land Co.

• Decision Date: 06 July 1918
• Citation: 205 S.W. 320,140 Tenn. 505
• Parties: STAUB v. SEWANEE COAL, COKE & LAND CO.
• Court: Tennessee Supreme Court

205 S.W. 320

140 Tenn. 505

STAUB v. SEWANEE COAL, COKE & LAND CO.

Supreme Court of Tennessee.

July 6, 1918

Appeal from Chancery Court, Grundy County; V. C. Allen, Chancellor.

Suit by Mrs. Rosina Staub against the Sewanee Coal, Coke & Land Company. From a decree in favor of plaintiff, fixing damages for trespass, both appeal. Affirmed.

GREEN J.

This was an ejectment suit, brought by the complainant to recover a tract of land in Grundy county. There was a decree in her favor, which was affirmed by this court, at a former term. It appeared that the defendant had mined certain coal from the land recovered, prior to and pending the litigation, and the case was remanded by this court to the chancery court for a reference as to the complainant's damage.

The reference was had, and further proof taken. Upon the coming in of the master's report, and the hearing of certain exceptions thereto, the chancellor fixed complainant's damage at $4,723.21. Both sides have appealed from this decree.

The principal defense urged upon us is that of champerty. The defendant insists that the proof taken on the reference disclosed that prior to the original bill herein, Mrs. Staub had leased the land recovered to the Thomas Coal & Land Company. It is said that the defendant was in possession of this land at the time of the lease. Further, it is urged that under the terms of the contract between Mrs. Staub and the Thomas Coal & Land Company, that company undertook to prosecute suits in the name of Mrs. Staub for the ejection of all trespassers upon the property, and the recovery of said property from said trespassers, and for the recovery of any improvements put upon said property by said trespassers. It is said that this particular suit is prosecuted by virtue of this agreement, and that said suit is accordingly champertous and should be dismissed.

These contentions of the defendant with reference to the nature of the contract between Mrs. Staub and the Thomas Coal & Land Company are denied by her counsel, but, for the purposes of this case, we may concede that they are true.

The Legislature undertook to embody the law of champerty and maintenance in an act which it passed in 1821, the same being chapter 66 of the acts of that session. This act was carried into the Code at sections 1776-1789 (Shannon's Code sections 3171-3184).

By chapter 173 of the Acts of 1899, sections 1781-1789 of the Code, inclusive, and sections 3176-3184 of Shannon's Code, inclusive, were repealed. That left in force only that portion of our champerty laws which relates to the effect of a conveyance of land adversely held.

These sections of the law relating to lands adversely held have no application in this case now. The land sued for has been decreed to Mrs. Staub, and possession thereof has been surrendered to her. No question of champerty was made in the former trial of this case, either in this court or in the court below, and it is now, of course, too late to raise it so far as the land is concerned.

It is however, said that champerty is a defense of which the court will take notice at any stage of the proceedings, and that the champertous agreement had with reference to this suit between Mrs. Staub and the Thomas Coal & Land Company should work its dismissal, and prevent any further progress herein, and any recovery of damages.

This objection no doubt would have been good prior to chapter 173 of the Acts of 1899. Sections 3176-3178 of Shannon's Code made it unlawful to enter into any understanding or agreement with any practicing attorney or other person to divide or apportion the proceeds of any litigation, and made it the duty of the court to dismiss such a suit when any such agreement was shown to exist therein.

But, as stated, this much of the law with reference to champerty and maintenance has been repealed. It has been a matter of discussion as to whether the repeal of this portion of the act of 1821 indicates an entire change of policy on the part of Tennessee with reference to the champerty laws, or whether such repeal merely serves to reinstate the common law on the subject. This controversy was noted in two comparatively recent cases, but not determined. Such a decision was not necessary in either case. Heaton v. Dennis, 103 Tenn. 155, 52 S.W. 175; Robertson v. Cayard, 111 Tenn. 356, 77 S.W. 1056.

At common law, if a suit is founded upon a champertous contract, such suit will be dismissed upon the champerty appearing.

On the contrary, a suit will not be dismissed merely because there is a champertous contract with relation to its prosecution between the plaintiff and his attorney, or between the plaintiff and another layman. It is said that such a collateral contract, although it be illegal as between the parties thereto, in no wise affects the obligation of the defendant to the plaintiff.

This court so declared the law in Robertson v. Cayard, supra, and said that the former decisions of this court, dismissing suits in which a champertous agreement between plaintiff and his attorney, or...