White v. Gay's Ex'rs

• Decision Date: 31 December 1846
• Parties: DUDLEY WHITE v. GAY'S EXECUTORS
• Court: Texas Supreme Court

1 Tex. 384

DUDLEY WHITE

v.GAY'S EXECUTORS

Supreme Court of Texas.

December Term, 1846.

Appeal from Washington County.

The principles of the common law are not contravened by the purchase of the whole interest of another in a contract, security or other property, although the same may be in litigation, provided the purchaser does not undertake to pay costs or make advances beyond what is necessary to support the exclusive interest which he has acquired. Such purchase is not obnoxious to the imputation of either champerty or maintenance.

The civil law prohibits the sale of litigious rights during the time of the contest, but according to decisions in Louisiana, rights were not characterized as litigious at Rome until contested in a judicial proceeding.

The sale of property not actually in litigation is not prohibited by the Spanish law, unless the sale be made to some person “more powerful, artful or obstinate” than the vendor for the purpose of throwing difficulties in the way of another who claims it. The term “ litigious right” is defined by that law to be a right which is in suit.

Mr. Chief Justice Hemphill, in delivering the opinion of the court, gives a full statement of the facts; they are therefore not inserted here.

Fischer and Webb, for appellant, cited the following authorities: 9 Mart. 183; 4 Mart. (N. S.) 200; 2 Story Eq. 382; Code Nap. 1700; Pothier on Sales, 584-5; Pothier on Obl. 550; 1 Domat, 69; 11 Just. Civ. Code, 451; 13 Id. 49.

McFarland, for appellees, cited on the question of champerty, Chit. on Con. 676; 2 Story Eq. 410; 2 Johns. Cas. 58; 2 Caine, 147; 11 Mass. 549;4 Littell, 411;3 Cow. 623.

The action was brought on a note of hand executed by Thomas Gay, in his life time. His executors filed several pleas in their answer, among which was one that the consideration for which the note was given was illegal and immoral and had wholly failed. Judgment was rendered for the plaintiff, but on motion it was set aside and a new trial granted. On the second trial the jury found a special verdict, on the submission of which to the court, judgment was given for the defendant, and from this an appeal was taken. The verdict is expressed in the following terms: “We, the jury, find the following as the facts, and request the court, if the law be with the plaintiff, we find for the plaintiff, the sum of five hundred and fifty dollars balance of debt, and the further sum of one hundred and thirty-three dollars and seventy-five cents interest. We find that Thomas Gay, in his life-time, made and executed the note sued on for and in consideration as set forth in the deed or contract entered into between said Gay, in his life-time, and said White, the plaintiff, now filed and prayed to be taken as a part of this verdict marked exhibit A, and no others; that the said White has been always willing and ready to comply with his portion of the contract; that said Gay, in his life-time, has failed to pay said note; that the same has been presented to his representatives and refused.” It was further in proof that said White offered either to rescind said contract or to have the money due him paid; or if said contract be illegal, they pray the court to render a judgment for the defendant, etc.

The exhibit A was an agreement between White and Gay, reciting in substance that White was about to institute a suit against one Duckworth for the recovery of a half league of land, which land was in the possession of Duckworth; and which said Duckworth claimed under an assignment of the original deed made by White to him, said Duckworth, but the condition of the assignment had never been complied with by Duckworth. Gay then binds himself to pay to White the sum of six hundred dollars at a future day; on consideration of which White assigns, transfers and sets over to him, Gay, all his right, title and interest in and to the said half league of land, and authorizes the said Gay to bring suit in his name (if the same be necessary) in any of the courts of the republic for the recovery of the land, with the understanding that Gay was to pay all the expenses incurred in conducting said suit or suits, and that White was to furnish the evidence necessary to establish the invalidity of Duckworth's claim and the validity of his own title to the land, and also the names of the witnesses by whom his title could be sustained. The instrument was dated the 10th January, 1838, and the question presented is, whether the transaction was or was not in contravention of the laws and policy of the country at the period of its execution.

The appellees insist that it was tainted with champerty and therefore void.

In the decision of the question, it will not be essential to review in detail the doctrines of the common law of England on the subjects of champerty and maintenance, nor how far the more ancient cases have been disturbed, and the more ancient rules modified by the principles and decisions of the courts of equity; nor will it be material to inquire whether this transaction might not be maintained at common law without a violation of the principles of that system of jurisprudence. It may, however, be observed that those principles are not contravened by the purchase of the whole interest of another in a contract, security or other property, although the same may be in litigation, provided the purchaser does not undertake to pay any costs or make any advances beyond the mere support of the exclusive interest, which he has acquired; and in illustration of the rule it is said to be extremely clear that an equitable interest, under a contract of purchase of real estate, may be sold, though the interest be subject to the decision of the court of equity on a contract for a specified performance. If subpurchasers from an original vendee can have the benefit of his contract, and can compel him to permit the use of his name in judicial proceeding to have that contract specifically enforced, it might on principle and reason be well contended that a second purchaser (as was the case here) from the original vendor, who claimed a rescission of the first contract of sale, would lawfully...