Wilhite v. Roberts

• Decision Date: 09 June 1836
• Citation: 34 Ky. 172
• Parties: Wilhite v. Roberts.
• Court: Kentucky Court of Appeals

34 Ky. 172

Wilhite v. Roberts.

Court of Appeals of Kentucky.

June 9, 1836

FROM THE CIRCUIT COURT FOR NELSON COUNTY.

Mr. M D. McHenry for plaintiff.

Mr Nicholas for defendant.

OPINION

EWING JUDGE.

George Roberts, as the survivor of Roberts and Rudd, brought an action of debt against Presley Wilhite, on a penal bond for four hundred dollars, to which the following condition is attached:--

Debt on bond; plaintiff sets out the condition as reciting that an eject. had been commenced for def't " upon the demise of the said def't and his wife, B. W." & c oyer is craved, and a bond produced, in which the recital is that an eject. had been commenced " upon the demise of my (deft's) wife, B. W. formerly B. D." & c. The variance is fatal, upon demurrer.

" The condition of the above obligation is such that whereas the above named Roberts and Rudd, as my attorneys, have, for me, commenced an action of ejectment in the Nelson Circuit Court, on the demise of my wife, Betsey Wilhite, formerly Debaneaux, formerly Roberts, for lot No. -- situate in Bardstown, against the tenant then in possession. Now, if the said Rudd and Roberts shall succeed in recovering possession of said lot of ground, on the demise aforesaid, then I oblige myself to pay them to the amount of one-half of the value of the above mentioned ground."

The declaration, in reciting the condition of the bond, in attempting to set it out verbatim, alleges that " Roberts and Rudd, as attorneys of said defendant, had commenced an action of ejectment in the Nelson Circuit Court, on the demise of said defendant, and his wife Betsey Wilhite & c."

The defendant craved oyer of the bond and condition, and demurred for the variance. His demurrer was overruled by the Court, and this is the first error assigned.

The variance is certainly fatal; and it was proper to take advantage of it by demurrer. A covenant to prosecute a suit on the demise of Betsey Wilhite, is certainly variant from a covenant to prosecute a suit on the demise of Presley Wilhite and Betsey Wilhite his wife. And we are satisfied that the variance is so material, as to be fatal on demurrer. 1 Chitty's Pls. 307, 439.

The defendant, after his demurrer was overruled, filed the following plea: " that said Roberts and Rudd, at the time of the date of said covenant, had commenced, and were prosecuting, a suit in ejectment, on the demise of plaintiff's wife, & c., for a lot of ground, and that, contrary to the law of the land against champerty and maintenance, it was illegally agreed between the said Roberts and Rudd on the one part, and the defendant on the other, that the said defendant should give and convey one-half of said lot of ground to said Roberts and Rudd, for their services in prosecuting said suit, and that said obligation was procurred, by the said Roberts and Rudd, as a security for the performance by the said defendant, of said illegal agreement, and was taken in the form in which it is written, fraudulently, for the purpose of evading the force of the law against champerty and maintenance, and that the same was given without any other consideration; and this he is ready to verify."

A client gives his lawyer a bond reciting that the lawyer had commenced an eject. for him, and binding himself to pay the lawyer, in case of success, to the amount of half the value of the land; this is not a contract prohibited by the act against champerty of 1824; the contracts within that act are contracts to undertake to recover, & c., for part or profit, out of the thing in contest.

To this plea a demurrer was filed by the plaintiff, and joined, and the demurrer sustained by the Court. And the most important question arising on the record, is as to the sufficiency of this plea to bar the plaintiff's action.

It is provided in the second section of the act " to revive and amend the champerty and maintenance law" (Stat. Law, 286) that " It shall not be lawful for any person or persons to contract, or to undertake to recover, or carry on any suit for the recovery, of any such pretended right or title to land as aforesaid, of which adverse possession is held under conflicting title as aforesaid, for or in consideration to have part or profit thereof; and the parties to such contract shall forfeit all right, title, interest or claim in or to the land claimed, under such pretended right or title, and all right to maintain any action, or suit at law or equity, upon such pretended right or title; and such right or title shall vest in the Commonwealth, and enure to the benefit of the person in possession, without office found."

We have no idea, that the bond sued on, contains any stipulation, on its face, in conflict with the provisions of the foregoing section. It is as competent for a litigant to regulate the amount of his attorney's fee, by the value or half the value of the property in contest, as to regulate it by value, or half the value, of any other piece of property.

Whether he regulates it by the one or the other, or agrees to pay...