Judge Marshall
delivered the Opinion of the Court.
This case was formerly before the Court, and the opinion then rendered is referred to for a general statement of the facts and questions of law as then presented: See 7 Dana, 36. Upon the return of the cause to the Circuit Court, the demise from the heirs of Abm. Owen, deceased, was stricken out of the declaration on a rule to show by what authority the suit was prosecuted in the name of said heirs. After which a trial was had on the demise from Cardwell alone, who claimed title under the patent of Abm. Owen, which was the oldest on the land, and by deed of April 6, 1832, from the heirs of the patentee.
The defence was placed on two grounds: 1st, that by the long continued possession of Bracket and his widow and children, (who had, howpver, removed from the land before the defendants took possession,) a conveyance from Owen or his heirs, prior to the deed to Cardwell, might be presumed, or their right of entry was barred; and,
2nd, That the sale and conveyance from Owen’s heirs to Cardwell, was void under the act against champerty, in consequence of the adverse possession of the defendant Shipman, the tenant of Spiigg’-s heirs.
The instructions of the Court which are applicable to the first of these grounds having, when taken together, placed the question on its proper basis before the jury, and there being no ground to presume that they were mistaken in the law upon this branch of the case, or that their verdict for the defendants was founded upon it, we deem it unnecessary to make any more particular reference to it.
The case has been discussed in this Court mainly upon the second ground of defence, in regard to which we deem it necessary to state our opinion upon two points only.. •
The possession of land to render a conveyance thereofehamperlous and void, must be “an actual adverse possession, manifested by some act or fact sufficient to indicate to others that theperson claiming to be possessed had, in fact the possession.”
One of several heirs in whose name a demise had been laid in the declaration, but which had been stricken out, is a competent witness for the plaintiff in ejectment.
1. We are of opinion that the possession of land which will render champertous and void a conveyance of the same land, between persons not in possession, must be an actual adverse possession, manifested by some act or fact sufficient to indicate to others, that the person claiming to have been possessed, had in fact the possession. There must be some open demonstration of actual occupancy, or at least of intended use, whereby the persons bargaining for the land may have some clue for ascertaining that it is in the adverse possession of another. This doctrine is expressly declared in the former opinion before referred to, pages 41-42, and supported by the case of Moss, &c. vs Scott, 2 Dana 275, and the case of Lillard vs McGee, 3 J. J. Marsh. 552, in which last case it is said that improvement'and occupation, without actual residence, is sufficient. It follows from these principles, that although a mere entry may, for some purposes, give possession, it does not, of itself, give such an actual adverse possession as will render void a sale or conveyance of the land made at any time after the entry, but while there is no person or thing on the land indicating actual possession. Some of the instructions given on motion of the defendants, are in effect, that if Shipman, whose farm adjoined the land leased to him, and which is in contest, procured the lease with a view of cultivating the leased land, (which was unenclosed) with his own farm, he is to be considered as in the actual possession, from the time he made the first actual entry, with the intention of taking possession under the lease; and that such possession, if adverse, would render the deed, if made during its continuance, champertous and void. These instructions were, in our opinion, erroneous, and being calculated to affect the verdict, the error is sufficient ground of reversal.
2. After the demise from the heirs of Owen was stricken from the declaration, the depositions of two of the heirs were taken, which conduce to prove that some time before the date of the deed to Cardwell, and as one of them, “from his best recollection,” states, in the fall before, one of said heirs, who had usually acted for all, and whose acts had usually been confirmed by all, made the contract with Cardwell for the sale of said land by the [371]*371said heirs to him, and that the deed was afterwards made in good faith, to consummate said contract, which seems to have been verbal only, but which the witness thinks, from his general practice, he communicated immediately to his co-heirs. There is no evidence conducing to prove even an entry on the land by Shipman, for the purpose of taking possession, as early as the fall of 1831. And it is made a question whether, if the verbal contract for the sale of the land was made before there was any adverse possession, such a contract could be brought in aid of the deed afterwards made, in pursuance and confirmation of it, so as to support the deed, if there was an adverse possession when it was executed.
A conveyance of land adversely possessed, is not champertous, if it be in compliance with a written executory contract of sale, made when it was not so adversely possessed.
a It has been repeatedly decided by this Court, and is now a settled doctrine, that a conveyance of land in adverse possession, is not void under the champerty act of 1824, if the conveyance be in pursuance of a written contract, which was itself uninfected with champerty.
It is now contended that the present case does not come within the principle on which this doctrine rests, because a verbal contract for land is not like one in writing, enforcible against the will of the party. But we do not perceive that this distinction is entitled to any weight in determining the construction or operation of the act against champerty. The verbal contract, though not en-forcible, is not illegal, and is not only not void, but is recognized in law under various circumstances, as the source of rights and obligations. The act does not intend to prevent men from carrying into effect contracts made in good faith, and which axe uninfected with champarty, but was made to prevent the purchase of pretended titles to land in adverse possession. The sole presumable object of such a purchase is to set on foot litigation, or at least to harrass the occupant. It was to defeat and to discourage this purpose that the act declares void the purchase, whether by deed, bond, or executory contract, if made while the land is in the adverse possession of another. It is not every deed, but every purchase, whether by deed, bond, or executory contract, that is made void, if the purchase is made while the land is adversely possessed. According to the tenor of the act, a purchase [372]*372may be made by deed, bond, or executory contract, and the construction which has been given to it by the doctrine above stated, is that if the purchase by executory contract is not within the operation of the statute, the subsequent consummation of the same purchase is not brought within the statute by an intervening adverse possession. In other words, the act does not interfere with the performance of such executory contracts as it does not itself denounce. If the purchase be pure in its origin, it is not rendered void by the subsequent fact.
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Judge Marshall
delivered the Opinion of the Court.
This case was formerly before the Court, and the opinion then rendered is referred to for a general statement of the facts and questions of law as then presented: See 7 Dana, 36. Upon the return of the cause to the Circuit Court, the demise from the heirs of Abm. Owen, deceased, was stricken out of the declaration on a rule to show by what authority the suit was prosecuted in the name of said heirs. After which a trial was had on the demise from Cardwell alone, who claimed title under the patent of Abm. Owen, which was the oldest on the land, and by deed of April 6, 1832, from the heirs of the patentee.
The defence was placed on two grounds: 1st, that by the long continued possession of Bracket and his widow and children, (who had, howpver, removed from the land before the defendants took possession,) a conveyance from Owen or his heirs, prior to the deed to Cardwell, might be presumed, or their right of entry was barred; and,
2nd, That the sale and conveyance from Owen’s heirs to Cardwell, was void under the act against champerty, in consequence of the adverse possession of the defendant Shipman, the tenant of Spiigg’-s heirs.
The instructions of the Court which are applicable to the first of these grounds having, when taken together, placed the question on its proper basis before the jury, and there being no ground to presume that they were mistaken in the law upon this branch of the case, or that their verdict for the defendants was founded upon it, we deem it unnecessary to make any more particular reference to it.
The case has been discussed in this Court mainly upon the second ground of defence, in regard to which we deem it necessary to state our opinion upon two points only.. •
The possession of land to render a conveyance thereofehamperlous and void, must be “an actual adverse possession, manifested by some act or fact sufficient to indicate to others that theperson claiming to be possessed had, in fact the possession.”
One of several heirs in whose name a demise had been laid in the declaration, but which had been stricken out, is a competent witness for the plaintiff in ejectment.
1. We are of opinion that the possession of land which will render champertous and void a conveyance of the same land, between persons not in possession, must be an actual adverse possession, manifested by some act or fact sufficient to indicate to others, that the person claiming to have been possessed, had in fact the possession. There must be some open demonstration of actual occupancy, or at least of intended use, whereby the persons bargaining for the land may have some clue for ascertaining that it is in the adverse possession of another. This doctrine is expressly declared in the former opinion before referred to, pages 41-42, and supported by the case of Moss, &c. vs Scott, 2 Dana 275, and the case of Lillard vs McGee, 3 J. J. Marsh. 552, in which last case it is said that improvement'and occupation, without actual residence, is sufficient. It follows from these principles, that although a mere entry may, for some purposes, give possession, it does not, of itself, give such an actual adverse possession as will render void a sale or conveyance of the land made at any time after the entry, but while there is no person or thing on the land indicating actual possession. Some of the instructions given on motion of the defendants, are in effect, that if Shipman, whose farm adjoined the land leased to him, and which is in contest, procured the lease with a view of cultivating the leased land, (which was unenclosed) with his own farm, he is to be considered as in the actual possession, from the time he made the first actual entry, with the intention of taking possession under the lease; and that such possession, if adverse, would render the deed, if made during its continuance, champertous and void. These instructions were, in our opinion, erroneous, and being calculated to affect the verdict, the error is sufficient ground of reversal.
2. After the demise from the heirs of Owen was stricken from the declaration, the depositions of two of the heirs were taken, which conduce to prove that some time before the date of the deed to Cardwell, and as one of them, “from his best recollection,” states, in the fall before, one of said heirs, who had usually acted for all, and whose acts had usually been confirmed by all, made the contract with Cardwell for the sale of said land by the [371]*371said heirs to him, and that the deed was afterwards made in good faith, to consummate said contract, which seems to have been verbal only, but which the witness thinks, from his general practice, he communicated immediately to his co-heirs. There is no evidence conducing to prove even an entry on the land by Shipman, for the purpose of taking possession, as early as the fall of 1831. And it is made a question whether, if the verbal contract for the sale of the land was made before there was any adverse possession, such a contract could be brought in aid of the deed afterwards made, in pursuance and confirmation of it, so as to support the deed, if there was an adverse possession when it was executed.
A conveyance of land adversely possessed, is not champertous, if it be in compliance with a written executory contract of sale, made when it was not so adversely possessed.
a It has been repeatedly decided by this Court, and is now a settled doctrine, that a conveyance of land in adverse possession, is not void under the champerty act of 1824, if the conveyance be in pursuance of a written contract, which was itself uninfected with champerty.
It is now contended that the present case does not come within the principle on which this doctrine rests, because a verbal contract for land is not like one in writing, enforcible against the will of the party. But we do not perceive that this distinction is entitled to any weight in determining the construction or operation of the act against champerty. The verbal contract, though not en-forcible, is not illegal, and is not only not void, but is recognized in law under various circumstances, as the source of rights and obligations. The act does not intend to prevent men from carrying into effect contracts made in good faith, and which axe uninfected with champarty, but was made to prevent the purchase of pretended titles to land in adverse possession. The sole presumable object of such a purchase is to set on foot litigation, or at least to harrass the occupant. It was to defeat and to discourage this purpose that the act declares void the purchase, whether by deed, bond, or executory contract, if made while the land is in the adverse possession of another. It is not every deed, but every purchase, whether by deed, bond, or executory contract, that is made void, if the purchase is made while the land is adversely possessed. According to the tenor of the act, a purchase [372]*372may be made by deed, bond, or executory contract, and the construction which has been given to it by the doctrine above stated, is that if the purchase by executory contract is not within the operation of the statute, the subsequent consummation of the same purchase is not brought within the statute by an intervening adverse possession. In other words, the act does not interfere with the performance of such executory contracts as it does not itself denounce. If the purchase be pure in its origin, it is not rendered void by the subsequent fact. But if the original contract of sale, whether executed or executory, be made while the land is in adverse possession, it is declared void, and cannot, of course, furnish a support to any thing which may be attempted to be built upon it.
A conveyance of land made in conformity with anexecutoryverbal contract of sale, is notchampertons, though the land should be adversely possessedatthe date of the conveyance..
A verbal contract for the sale and conveyance of land, being certainly an executory contract, which under many circumstances may be connected with and furnish support to a deed, afterwards made to carry it into effect, and which the vendor has a right, in good faith, to confirm by deed, we do not perceive why it should be considered as entitled to no effect whatever in giving operation to the act against champerty:
In other cases, Courts of law and equity, acting on principles of justice, have supported titles consummated by deeds, on the ground that those deeds were founded on a previous parol contract of sale, when without such cause or consideration; the title under the deed must have yielded to some intervening claim. Thus showing that although a verbal contract for land is not a sufficient ground for coercing a deed, it may be sufficient ground for supporting a deed made, bona fide, in compliance with it. And as the act against champerty looks to the original contract or purchase, and if that be pure does not condemn the act done in consummation of it, we are of opinion that the consummation of a pure verbal contract is no more condemned by the act than is the consummation of a written contract. It may be more difficult to prove the verbal contract, it may also be more difficult to show that the deed was in good faith, made in compliance with such a contract and for no other cause; but these facts being satisfactorily established, we are of [373]*373opinion that if the verbal purchase is made when there is no adverse possession, the deed executed in compliance with it will not be affected by an adverse possession existing at its date. The law upon this point was certainly not fully explained to the jury, and there is considerable doubt whether from the instructions, they understood that they were to inquire into or to consider any other contract than that which was evidenced by the deed. We, have, therefore, thought it necessary to state our opinion explicitly on this branch of the case. It is proper further to ^ay, that in the present case, as the verbal contract was made, if at all, by one heir for himself and others, that contract, as regards the title of the other heirs, can only support the deed so far as the heir who made the contract had authority, express or implied, from them, or so far as his act was assented to by them before the adverse possession commenced. It is proper also to remark, although three of the female heirs of Owen did no^mifti in the deed, yet as it was executed by their husbafes, operates to pass the interests of the femes during ti verture at least, and where there was a child of th^fií'ár riage, born alive, it operates to pass the interest duri'sv' life of the husband, though the wife be dead, And’^fert whatever be the length of the demise stated in the deck? ration, it is good while the interest of the lessor subsists.
The fact that the heirs of Owen were originally named as lessors of the plaintiff, does not affect their competency as witnesses, after the demise in their names was stricken out of the declaration. From that time they ceased to have any further interest in the suit, either in regard to costs or otherwise.
We are not to be understood as expressing any opinion as to the state of the possession at the date of the deed to Cardwell, or as limiting the inquiry on another trial to the state of the possession at the date of the parol contract.
For the error in the instructions above noticed, the judgment is reversed and the cause remanded for a new trial in conformity with this opinion.
Dec. 10, 1840.