Schaferman v. O'Brien

Stewart, J., delivered the opinion of this Court. Several preliminary propositions discussed by the respective counsel in this case, will be disposed of before we determine the main question — the character and purport of the deed of the 30th of September, 1852, from Leiman to Schaferman. The plea of limitations having been interposed, was urged against the demand of the complainant, but we think it is not applicable under the circumstances of this case. In McDowell vs. Goldsmith, 24 Md. Rep., 214 , it was decided that. ⁵⁷³ the confession of a judgment, by a fraudulent grantor, or his administrator, after the execution of the deed, would not defeat the plea of the statute of limitations made by the grantee.

But, in that case, the claim was actually barred before the judgment was confessed, and it was held that the grantor could not voluntarily waive or defeat any right of the grantee. In this case, the judgment against the grantor was recovered before the claim had been barred by the statute — there was no waiver of any right or defence to the prejudice of the grantee. The original cause of action was merged in the payment and the plea of limitations cannot avail. The same point was expressly decided in Williams vs. Banks, 11 Md. Rep., 198 , where a judgment was confessed, after the deed was executed, but before limitations had barred the note upon which the judgment was confessed.

See page 234, Glenn’s claim ; see also Williams vs. Banks, 19 Md. Rep., 22 , &c. It has also been objected, that Sehaferman, having conveyed the property mentioned in the deed to other persons, since the pendency of these proceedings, they ought to have been made parties. If such a suggested fact could delay the cause, it might have become interminable. Grantees, claiming the land under parties to the suit, or any of them, by title, derived pendente lite, are in no better condition than those under whom they claim.

Tongue vs. Morton, 6 H. & J., 23 . It lias also been insisted that the complainant having purchased the judgment against Leiman, subsequent to the deed, has no standing in Court — that such a purchase savors of champerty — is in violation of the statute of Henry VIII, eh. 9, recognized in Kilty’s Report, as in force in this State. This statute prohibits under penalties, the buying or selling of any pretended right to land, unless the vendor is in actual possession of the same, or of the reversion or remainder. “The ancient policy which prohibited the sale of pretended titles, as an act of maintenance, tvas founded upon a state of society which does not exist in this country.” 4 Kent, 526. The statute of Henry VIII, ch. 9, is not rigidly enforced in this country.

Sedgwick vs. Stanton, 14 N. Y. Rep., 289 . ⁵⁷⁴ “ It will have been perceived that the subject of the assignment of rights of action, as tending to the common law offences of champerty and maintenance, is here left in a state of considerable uncertainty.” The subject was examined in a late case, (Danforth vs. Streeter, 28 Vermont, 490,) and the following conclusion reached: “That the bona fide purchaser of a bond or other chose in action, which is represented to be due, and which the purchaser believes to be due, may sue upon the same and not incur censure from the law; and that all contracts founded upon any such consideration are valid. The same is true of any aid one may render another in a suit, by way of money or advice or other lawful assistance, if done under a bona fide belief in the justice of the case. ' It was upon these grounds that we ventured td suggest that the common law notion of maintenance, as applicable to the assignments of rights of action, had become practically obsolete.” Story’s Eq. Jur., sec. 1057. “Maintenance now means, where a man, improperly and for the purpose of stiring up litigation and strife, encourages others, either to bring actions or to make defences, which they have no right to make.” Findon vs. Parker, 11 Mees. & Welsby, 679, 682, referred to in 4 Kent, 531. We are not aware of any case in the judicial history of this State, where the provisions of the statute of Henry VIII, have been enforced — without meaning to assert that there might not be such exceptionable conduct savoring of champerty and maintenance, as to be punishable, yet there can be no doubt that this statute is, in a great measure, now obsolete.

Before the Act of 1829, ch. 57, the bona fide assignee of a chose in action, was considered as having peculiarly an equitable remedy, and certainly that statute enlarges his powers. It gives to the assignee of a judgment, specialty or other chose in action, the authority to sue, in any Court of law or equity, reserving to the defendant all such legal or equitable defences as might be maintained against the assignor.” The necessity of a lien by a judgment, or otherwise, against the property, as ⁵⁷⁵ preliminary to equitable relief, is obviated since the Act of 1835, ch. 380. Richards and Wife vs. Swan, 7 Gill, 377 . In the case before us judgment has been obtained against Lei-man, the grantor, in the deed.

The complainant, as assignee, being entitled to collect from Leiman this demand, existing as an original cause of action antecedent to the deed in question., has the right to pursue any property, for