Peck v. Heurich, 167 U.S. 624 (1897)
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Peck v. Heurich
No. 289
Argued April 26-27, 1897
Decided May 24, 1897
167 U.S. 624
ERROR TO THE COURT OF APPEALS
OF THE DISTRICT OF COLUMBIA
A judgment cannot be affirmed upon a ground not taken at the trial unless it is made clear beyond doubt that this could not prejudice the rights of the plaintiff in error.
By the common law, prevailing in the District of Columbia, an agreement by an attorney at law to prosecute at his own expense, a suit to recover land in which he personally has and claims no title or interest, present or contingent, in consideration of receiving a certain proportion of what he may recover is unlawful and void for champerty.
A deed conveying lands in the District of Columbia to an attorney at law and another person in trust that the grantees should sue for, take possession of, and sell the lands, and that the attorney should retain one-third of the proceeds after paying out of it all the costs and expenditures, and that the other two-thirds, clear of any costs or charges whatever, should be paid to the grantors, is void for champerty, and will not sustain an action by the grantees to recover part of the lands from third persons.
This was an action of ejectment brought September 20, 1892, in the Supreme Court of the District of Columbia by Ezra J. Peck and Leo Simmons, trustees, against Christian Heurich, to recover land in the District of Columbia. The defendant pleaded the general issue.
At the trial, the plaintiffs, as stated in the bill of exceptions, offered in evidence a deed dated and recorded November 8, 1828, from William A. Bradley purporting to convey to Ann Bartlett, in fee simple, the real estate described in the declaration, together with other real estate, in consideration of the sum of $2,450,
and thereupon counsel for plaintiffs announced to the court that they proposed to prove that the plaintiffs and defendant traced their respective titles to the land in controversy from said Ann Bartlett as a common source of title, which defendant, by his counsel, then and there denied.
The plaintiffs then called three witnesses who testified that Anna L. Peck and ten other persons named were the heirs of Ann Bartlett. These witnesses were an uncle and aunt of Anna L. Peck, and her husband, Ezra J. Peck. Upon their cross-examination, it appeared that the heirs of Ann Bartlett were first informed that they had any title to these lands by Leo Simmons in 1890.
The plaintiffs then offered in evidence the record of a deed dated October 20, 1891, from the persons before shown to be the heirs of Ann Bartlett, and from the husbands and wives of those who were married, describing themselves as all the heirs of Ann Bartlett, and reciting that they executed this deed, "believing it to be for their interest and convenience to do so," and purporting, for the consideration of five dollars, to convey to Peck and Simmons, trustees, in fee simple, all the real estate in the District of Columbia of which Ann Bartlett died seised, and especially the land conveyed to her by Bradley by the deed of November, 8, 1828. The conveyance by the heirs of Ann Bartlett to the plaintiffs was expressed to be upon the following trusts:
In trust, nevertheless, to and for the following uses and purposes, namely: to take and hold possession of the said real estate, and to institute and prosecute to a final conclusion in their own names any and every action, suit, or proceeding, in law and in equity, or otherwise however, for the possession of said real estate, if in their judgment expedient, and to compromise, pay for, and purchase any outstanding claim or title against said real estate, if in their judgment expedient, and generally to do any and every thing in their judgment expedient which may be necessary to vest in them a perfect and unencumbered title in fee simple to, and the recovery of possession of, said real estate, and upon the vesting in them of a perfect and unencumbered title in fee simple, and the recovery of the possession of said real estate, or before and without the same, and without such proceedings, acts, and doings as they may think best, and at any time, to sell and convey said real estate, or any part thereof, in fee simple, or in any quantity of estate or estates, to any person or persons, and for such price and upon such terms as they may in their best judgment consider for the interest of the parties concerned, and upon such sale or sales to convey the title sold to the purchaser or purchasers without liability on the part of the purchaser or purchasers to see to the application of the purchase money, and, out of the purchase moneys or the full amount said property may sell for, it is distinctly understood between the parties to this indenture that the said Leo Simmons, one of the trustees or parties of the second part, shall retain 33 1/3 percent, or one-third, after paying all expenses, costs, and expenditures of the said parties of the second part in the execution of this trust out of the same, and the other two-thirds, or 66 2/3 percent of said purchase money, clear of any cost or charges whatever, to pay the heirs of said Ann Bartlett, their heirs or assigns, according to their respective interests, and it is further understood between the parties to this indenture that should Leo Simmons die after suit has been begun for the recovery of any said property, and before a settlement shall have been made, then in that case, the court having jurisdiction shall appoint a trustee to act in his stead, and pay over to the heirs or assigns of the said Simmons such profits as he would have been entitled to after paying said costs and expenditures.
The plaintiffs also offered in evidence records of deeds dated June 22, 1892, of the same real estate from Mr. and Mrs. Peck to H. Austin Clark, as trustee, and from Clark to Peck and Simmons, as trustees under the deed of October 20, 1891.
The defendant objected to the admission of the records of the deeds of October 20, 1891, and June 22, 1892, upon three grounds -- first, that they were not recorded until after this suit was brought; second, that the deed of October 20, 1891, was not recorded within six months after its date; third, that both deeds were champertous on their face.
The presiding judge sustained the third objection and declined to admit records of the deeds in evidence, on the ground that they were champertous on their face, and expressed no opinion upon the other objections.
The bill of exceptions stated that
thereupon the plaintiffs’ counsel announced to the court that the refusal of the court to admit the aforesaid records of said three deeds in evidence broke the continuity of plaintiffs’ title, and that they would therefore rest their case, whereupon the court instructed the jury to render a verdict for the defendant, which was done.
Judgment was rendered on the verdict, and the plaintiffs duly excepted to the ruling excluding the deeds, and to the instruction to return a verdict for the defendant, and appealed to the Court of Appeals, which, without considering the first and second objections made to the deeds at the trial, affirmed the judgment upon two grounds: first, that the deeds were champertous; second, that the plaintiffs had not introduced any evidence that William A. Bradley, the grantor of Ann Bartlett, had any title, or was ever in possession, or had any right to the possession, or that the state had ever granted the property, and the plaintiffs therefore had not been prejudiced by the exclusion of the deeds, even if they were valid. 6 App.D.C. 273. The plaintiffs sued out this writ of error.