By the Court,
Paine, J.
This suit was brought by the re.spondents to obtain, partition of certain real estate. } complaint sets forth that Job Barker died leaving there-jspondent Phcebe his widow, and Walter Barher and Angdine 'March, two children by a former wife, and six children by said Phcebe, his heirs at law, each entitled to one-eighth of the real estate, subject to her right of dower. It avers that her dower had been assigned, and that she had purchased the shares of Walt&r Barher and Angdine March, but that notwithstanding the purchase, they still pretend to have some interest in the premises.
Answers were filed by Walter Barken' and Angeline March, claiming that the purchase of their shares was void by reason of fraud, consisting of concealment of material facts, misrepresentation and undue advantage on the part of Phoebe Barlcer, who was administratrix of the estate at the time.
The first question is, whether these purchases are to be set aside.
But if not set aside, it is then claimed that the adminis-tratrix, in making them, used the funds belonging to the estate, and that therefore, instead of being entitled to these two shares in her own right, she should be adjudged to hold them in trust for the other - six heirs. The decree of the court below was in favor of the respondent Phcebe Barher. The infant heirs were represented by a guardian ad litem, but have not appealed. And the position last referred to, is urged here only by Anson Rogers and Mary Rogers, the latter being one of the heirs.
Upon the first question, the conclusion to which we have come will preclude an examination of its merits upon the testimony. "We might say, however,- that we are satisfied that no actual fraud or deceit was practiced by Phoebe Barher in the purchase of the two shares. And if the sales could be set aside at all, it could only be by an application of those rules which govern in the case of a purchase of trust property, by a trustee from the cestui gue trust, which it was contended were applicable here.
But we are fully satisfied from what appeared in proof, [142]*142as well as from wliat occurred on the argument, and the positions assumed by counsel in their briefs, that so far as / the interests of Walter Barker and Angeline March are con-f cerned, this defense is prosecuted entirely by Anson Rogers,[ in pursuance of an agreement that they were to convey to' him their respective shares, if recovered, in consideration of the sum of one hundred dollars to be paid by him to each on the making of the conveyance.
We think therefore that this defense, which is in substance a suit to set aside the sales for fraud, seeking affirmative relief, is prosecuted in pursuance of a champertous agreement, and that for that reason it ought not to be entertained by the court.
It may be that some of the evidence going to show this agreement would not have been admissible upon the strict rules applicable to evidence upon the merits of the case. But the question whether a suit is prosecuted upon a champertous agreement, is one outside of the real merits of the case. And although an issue might possibly be made on it, yet we think it need not necessarily be pleaded, but that if it comes to the knowledge of the court in any proper manner, it will refuse longer to entertain the proceeding. It would seem to stand upon similar grounds with an action for divorce prosecuted by collusion between the parties. The court, in arriving at a knowledge of the fact, would not be confined to the strict rules applicable to evidence offered on the trial of the ease, though it undoubtedly should not proceed upon mere suspicion, or without giving opportunity for avoiding the alleged champerty by proper proofs on the other side. In this case the evidence is such as leaves no doubt in our minds of the existence of the agreement, and its existence is assumed in the brief of counsel for the appellants.
The strictness of the law relating to champerty and maintenance has been "greatly relaxed, and with reason; yet it is still very generally recognized as an existing substantive part of the common law, and has been frequently enforced by the courts of this country. Rust vs. Larue, 4 Litt., 411; Brown vs. Beauchamp, 5 Mon., 413; Hoyt vs. Thompson, 3 Sandf. S. C. Rep., 430; Arden vs. Patterson, 5 Johns. [143]*143Ch. Rep., 44; Thompson vs. Warren & wife, 8 B. Mon., 488; Lathrop vs. Amherst Bank, 9 Met., 489.
l The remarks of the court in the. case last mentioned seem k «o us proper to be adopted here. They notice the fact that (the law upon the subject had been much relaxed, yet upon $he ground that it was a well established part of the common law, and generally recognized as such, although there was no statute in regard to it in that state, they held that if reasons existed for its abrogation it should be done by the legislature and not by the courts.
In Webb vs. Armstrong, 5 Humph., 379, it was held, that if it appeared satisfactorily to the court in proof, that the suit in its origin and progress was affected by champerty, it was its duty “ not to permit itself to become the organ and instrument to consummate such agreements, but to repel the plaintiff and his suit.” See also Morrison vs. Deaderick, 10 Humph., 342. In Hunt vs. Lyle et al., 8 Yerg., 142, a bill in equity had been filed to enjoin a judgment obtained in pursuance of a champertous agreement. The court said: “If there was champerty in prosecuting the suit at law, application ought to have been made to that court, the fact ascertained, and the suit dismissed.”
We feel bound therefore to hold that, with such qualifications as the authorities have established, the common law in regard to champerty prevails in this state, and that on its appearing to the court, in any satisfactory manner, that a suit is prosecuted in pursuance of a champertous agreement, it ought not further to entertain it.
But it is claimed that the effect of this doctrine is avoided by the fact that Rogers was related by marriage to Walter and Angeline, his wife being their half sister, and also that he had, by reason of that fact, an interest in litigating the question. Several authorities were cited sustaining the general proposition, that the common law rules upon this subject have been considerably modified; which causes were mostly as to the sale of lands held at the time by adverse title.
But the case bearing most nearly on the point was that of Thallhimer vs. Brinckerhoff, 3 Cow., 623. The court of er[144]*144rors in that case reversed the decision of the supreme court, 20 Johns., 385, where the agreement was held champertous. But although some reliance was placed upon the relation-J ship, one party having, as in this case, married the other’s sister, yet the decision of the court of errors seems to be'; placed principal^ upon the ground of interest, it being held | that the sister might inherit from her brother on a failure ofother heirs, and therefore her husband had a contingent interest in the litigation. But so far as this reason for the decision is concerned, it is obvious that it does not exist here. For although Bogers’s wife was the half sister of Walter and Angeline,
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By the Court,
Paine, J.
This suit was brought by the re.spondents to obtain, partition of certain real estate. } complaint sets forth that Job Barker died leaving there-jspondent Phcebe his widow, and Walter Barher and Angdine 'March, two children by a former wife, and six children by said Phcebe, his heirs at law, each entitled to one-eighth of the real estate, subject to her right of dower. It avers that her dower had been assigned, and that she had purchased the shares of Walt&r Barher and Angdine March, but that notwithstanding the purchase, they still pretend to have some interest in the premises.
Answers were filed by Walter Barken' and Angeline March, claiming that the purchase of their shares was void by reason of fraud, consisting of concealment of material facts, misrepresentation and undue advantage on the part of Phoebe Barlcer, who was administratrix of the estate at the time.
The first question is, whether these purchases are to be set aside.
But if not set aside, it is then claimed that the adminis-tratrix, in making them, used the funds belonging to the estate, and that therefore, instead of being entitled to these two shares in her own right, she should be adjudged to hold them in trust for the other - six heirs. The decree of the court below was in favor of the respondent Phcebe Barher. The infant heirs were represented by a guardian ad litem, but have not appealed. And the position last referred to, is urged here only by Anson Rogers and Mary Rogers, the latter being one of the heirs.
Upon the first question, the conclusion to which we have come will preclude an examination of its merits upon the testimony. "We might say, however,- that we are satisfied that no actual fraud or deceit was practiced by Phoebe Barher in the purchase of the two shares. And if the sales could be set aside at all, it could only be by an application of those rules which govern in the case of a purchase of trust property, by a trustee from the cestui gue trust, which it was contended were applicable here.
But we are fully satisfied from what appeared in proof, [142]*142as well as from wliat occurred on the argument, and the positions assumed by counsel in their briefs, that so far as / the interests of Walter Barker and Angeline March are con-f cerned, this defense is prosecuted entirely by Anson Rogers,[ in pursuance of an agreement that they were to convey to' him their respective shares, if recovered, in consideration of the sum of one hundred dollars to be paid by him to each on the making of the conveyance.
We think therefore that this defense, which is in substance a suit to set aside the sales for fraud, seeking affirmative relief, is prosecuted in pursuance of a champertous agreement, and that for that reason it ought not to be entertained by the court.
It may be that some of the evidence going to show this agreement would not have been admissible upon the strict rules applicable to evidence upon the merits of the case. But the question whether a suit is prosecuted upon a champertous agreement, is one outside of the real merits of the case. And although an issue might possibly be made on it, yet we think it need not necessarily be pleaded, but that if it comes to the knowledge of the court in any proper manner, it will refuse longer to entertain the proceeding. It would seem to stand upon similar grounds with an action for divorce prosecuted by collusion between the parties. The court, in arriving at a knowledge of the fact, would not be confined to the strict rules applicable to evidence offered on the trial of the ease, though it undoubtedly should not proceed upon mere suspicion, or without giving opportunity for avoiding the alleged champerty by proper proofs on the other side. In this case the evidence is such as leaves no doubt in our minds of the existence of the agreement, and its existence is assumed in the brief of counsel for the appellants.
The strictness of the law relating to champerty and maintenance has been "greatly relaxed, and with reason; yet it is still very generally recognized as an existing substantive part of the common law, and has been frequently enforced by the courts of this country. Rust vs. Larue, 4 Litt., 411; Brown vs. Beauchamp, 5 Mon., 413; Hoyt vs. Thompson, 3 Sandf. S. C. Rep., 430; Arden vs. Patterson, 5 Johns. [143]*143Ch. Rep., 44; Thompson vs. Warren & wife, 8 B. Mon., 488; Lathrop vs. Amherst Bank, 9 Met., 489.
l The remarks of the court in the. case last mentioned seem k «o us proper to be adopted here. They notice the fact that (the law upon the subject had been much relaxed, yet upon $he ground that it was a well established part of the common law, and generally recognized as such, although there was no statute in regard to it in that state, they held that if reasons existed for its abrogation it should be done by the legislature and not by the courts.
In Webb vs. Armstrong, 5 Humph., 379, it was held, that if it appeared satisfactorily to the court in proof, that the suit in its origin and progress was affected by champerty, it was its duty “ not to permit itself to become the organ and instrument to consummate such agreements, but to repel the plaintiff and his suit.” See also Morrison vs. Deaderick, 10 Humph., 342. In Hunt vs. Lyle et al., 8 Yerg., 142, a bill in equity had been filed to enjoin a judgment obtained in pursuance of a champertous agreement. The court said: “If there was champerty in prosecuting the suit at law, application ought to have been made to that court, the fact ascertained, and the suit dismissed.”
We feel bound therefore to hold that, with such qualifications as the authorities have established, the common law in regard to champerty prevails in this state, and that on its appearing to the court, in any satisfactory manner, that a suit is prosecuted in pursuance of a champertous agreement, it ought not further to entertain it.
But it is claimed that the effect of this doctrine is avoided by the fact that Rogers was related by marriage to Walter and Angeline, his wife being their half sister, and also that he had, by reason of that fact, an interest in litigating the question. Several authorities were cited sustaining the general proposition, that the common law rules upon this subject have been considerably modified; which causes were mostly as to the sale of lands held at the time by adverse title.
But the case bearing most nearly on the point was that of Thallhimer vs. Brinckerhoff, 3 Cow., 623. The court of er[144]*144rors in that case reversed the decision of the supreme court, 20 Johns., 385, where the agreement was held champertous. But although some reliance was placed upon the relation-J ship, one party having, as in this case, married the other’s sister, yet the decision of the court of errors seems to be'; placed principal^ upon the ground of interest, it being held | that the sister might inherit from her brother on a failure ofother heirs, and therefore her husband had a contingent interest in the litigation. But so far as this reason for the decision is concerned, it is obvious that it does not exist here. For although Bogers’s wife was the half sister of Walter and Angeline, and might possibly inherit from them, yet she was the daughter of Bheebe Barlcer, and in the absence of a will, must necessarily inherit from her. The interest derived from the relationship here was therefore in favor of sustaining the title of Phoebe, instead of that of Walter and Angeline.
But it is true that the opinion of the chancellor furnishes support for the proposition that the relationship alone would justify the one party in maintaining the suit of the other. And it must be conceded as established that a near relationship either by blood or marriage, will justify what would in its absence be maintenance. The counsel in the case of Thallhimer vs. Brinckerhoff, contended with great force that there was a distinction between maintenance and champerty in this respect, and that while relationship might justify the former it could not the latter. There is a clear distinction between the the two offenses, though champerty is a species of maintenance. But the opinion of the chancellor rejects this distinction, so far as the justification by relationship is concerned, and holds that wherever mere maintenance would be justified, the party maintaining may contract for his compensation, as well out of the property to be recovered, as of any other. But this proposition seems liable to serious question when the object of the law against champerty is remembered. That object is to prevent strife and litigation, and this it aims to secure by forbidding parties not interested to contract for an interest in the thing to be recovered, upon condition of their carrying on the suit. How mere maintenance among -relatives is not inconsistent with this object. [145]*145That merely allows them to assist each other in their suits, so far as their mutual affection and. regard for each , rights and interests might induce. This excludes the motives >of self interest, which come in play as soon as they are allowed to contract for a share of the thing to be recovered, which is champerty. There seems therefore to be a well founded distinction between champerty and maintenance so far as a justification by relationship is concerned. For if this is allowed to justify champerty to every extent, it is obvious that it might result in producing the evil which the law designed to prevent, in its worst forms, while the reasons upon which relatives have been allowed to justify maintenance would almost entirely fail. For the party might contract for the entire chance of gain, leaving the original owner a mere nominal sum for his interest. Such a contract would show clearly that the party was stimulated by a spirit of acquisition for himself, and not acting at all from that regard for the rights of his relative which the law allows as a justification of maintenance. We think therefore that if the rule j ustifying mere maintenance between relatives is to be extended so as to allow the party to contract for his compensation out of the property to be recovered in any case, it can only be carried so far as is consistent with the idea that he is influenced by that desire to benefit his relation, which the law approves, and not so far as to sustain a contract which entirely excludes that idea, and shows that he acts wholly from motives of self-interest, having bought his relative’s right to litigate for a mere nominal consideration. We think the very reason and object of the law requires that the exception be confined to these limits. For whatever reason there may have been for modifying the ancient strictness of the law on this subject, we are not prepared to admit that the law itself should be entirely abrogated. For there is undoubtedly a class of persons constantly engaged in prying into old rights and titles, for the purpose of discovering defects which would soon have been hidden forever under the dust of prescription, that they may buy out the interests of the original owners and litigate upon speculation. We think the encouragement of this practice is against public policy, [146]*146and that when it assumes fhe form of a champertous agreement, courts should decline to enforce it, and that where it js obvious that such is the real character of the transaction, as we think it is here, it ought not to find shelter under the thin guise of fraternal feeling which is attempted to be spread over it. We think therefore that the decision of the court below, refusing to sustain the defense set up for Walter Barker and Angeline March, must be affirmed, for the reason that it was conducted by Anson Rogers under an agreement grossly champertous in its character.
In regard to the other question, it is clear that the admin-istratrix did use at least a part of the funds of the estate in purchasing the shares of Walter and Angeline. And the other heirs would undoubtedly be entitled to have those shares treated as trust property, to some extent if not entirely, unless that result is prevented by other facts appearing in the case. And we think it is prevented by the fact that the administratrix has accounted before the probate court, whose decree was affirmed by the circuit court, for all the property of the estate which ever came into her hands. It seems clear that the heirs are not entitled to hold her to this account, upon which she pays back all the property of the estate for which she was ever liable, and also to follow any particular portion of it which she may have applied to the purchase of real estate in her own name, into the real estate, and have that adjudged to be held in trust for them. This may be illustrated by any case of ordinary trust. If the trustee uses the funds to buy real estate in his own name, the cestui quo trust has an election either to hold him personally responsible for the money, or to follow it into the land and have that adjudged trust property. But he cannot do both. And electing the one remedy is a waiver of the other.
It appears from the record that the proper notice of accounting was published, and also that the heirs, with the exception of Walter and Angeline, were represented in the probate court and in the circuit court. The items used by the administratrix in the purchase of these shares, are contained in the account, and are included in the balance of over four thousand dollars, for which a decree was rendered against [147]*147her. It is too late after having elected to hold her responsible personally, and obtaining this decree, for the heirs to attempt to follow the property into the land and hold that also. The decree of the probate court as to matters within its jurisdiction, is as conclusive and final as the judgment of any other court. Watson vs. Hutto, 27 Ala., 513; Tebbets vs. Tilton, 4 Foster (N. H.), 120. But here that decree was appealed from, and affirmed by the circuit court, so that it is as conclusive and binding between the parties, as to the matters included in it, as any other judgment of that court.
1861. August 21
For this reason we think the judgment of the circuit court must be affirmed, with costs.
A re-hearing was afterwards granted, and the case was finally disposed of by the following decision: