State Savings Bank v. Kircheval.

annexed to the freehold. They go to enhance the value of the estate, and will therefore inure to the benefit of the mortgagee so far as they increase his security for his debt, and to the same extent they enhance the value of the equity of redemption, and thereby inure to the benefit of the mortgagor." In controversies between mortgagor and mortgagee the rule is more favorable to the mortgagee in relation to fixtures than that which is applied as between landlord and tenant, and applying the principles announced in the cases which we have cited, which we believe to be sound and salutary, we must hold that the building in question was a part of the realty, and that neither the mortgagor nor the purchaser from him has a right to remove it. It becomes a part of the plaintiff's security for its debt.

The remaining question is, did the facts alleged in the petition warrant the court in restraining the parties by injunction from removing the building. It is not essential that the injury threatened shall be irreparable, to warrant a resort to the remedy by injunction. Our statute provides, sec. 24, p. 1032, Wag. Stat., that the remedy by writ of injunction shall exist in all cases, when an injury to real or personal property is threatened, and to prevent the doing of any legal wrong whatever, whenever, in the opinion of the court, an adequate remedy cannot be afforded by an action for damages." Would an action for damages here have afforded an adequate remedy, is the question, and not whether the threatened injury would have been irreparable. The building was erected to be used in common with, and as an office for, the mill. It was erected to supply the place of an office formerly used, which had been appropriated to another purpose. Its immediate and constant use was of importance to the milling business. The value of the building which a jury might have given as damages would not have been a sufficient compensation to the owner for its removal. The defendant Allen may have been solvent, amply able to respond in damages for his trespass, but it does not therefore follow that he could not be restrained from severing from the land a house which belonged, not to him, but to the owner of the land. If a man of large fortune, so wealthy as to place beyond a doubt his ability to pay any damages which might be assessed to me for his trespass, should determine and threaten to tear down my dwelling over my head, will it be said that a court of equity would be powerless to restrain him from executing his threats, and that I would have no VOL. XXVII-40

Duke v. Harper.

remedy but to suffer the wrong and sue for damages? There are inconveniences and perplexities to which one may be subjected by a trespass such as we are considering, for which a jury could not, under the rules of law, fully compensate him, and we think the provision of our statute broad enough, however the law may have been before its enactment, to authorize a resort to injunction proceedings in such cases. The judgment of the Circuit Court is affirmed. All concur.

Judgment affirmed.

DUKE V. HARPER.

(66 Mo. 51.)

Champerty.

Although champertous contracts are void, yet as it is an essential element of such a contract that the attorney is to contribute to the expenses of the litigation, an agreement merely that the attorney is to receive as compensation for his services, a portion of the subject-matter of the litigation, is not champertous. (See note, p. 319.)

A

CTION of damages for breach of contract for the conveyance by defendant to plaintiff of a quarter of certain property, as compensation for services as attorney in recovering said property in legal proceedings for defendant. Demurrer, on the ground that the agreement was champertous, was sustained by the trial court, but this judgment was reversed on appeal to the St. Louis Court of Appeals, and defendant appealed.

Martin & Lackland, for appellant.

Davis, Thourghman & Warren, for respondents.

HENRY, J. "Champerty," says Hawkins, "is the unlawful maintenance of a suit in consideration of some bargain to have part of the thing in dispute, or some profit out of it." Sir EDWARD COKE's definition is similar, and he says it was an offense at common law before any statutes were passed on the subject, and cites Bracton and Fleta to support his position. Blackstone defines champerty to be "a bargain with the plaintiff or defendant cam

Duke v. Harper.

pum partire, to divide the land or other matter sued for between them, if they prevail at law; whereupon the champerter is to carry on the party's suit at his own expense." Bouvier's definition of the offense is the same as Blackstone's. Cooley's Blackstone, fourth book, 435; Bouvier's Dictionary, vol. 1, p. 259. In a note to Cooley's Blackstone, Judge COOLEY observes that "the tendency of late has been to confine these offenses (maintenance and champerty) within bounds somewhat narrower than those indicated by the older authorities," page 135. In Lathrop v. Amherst Bank, 9 Metc. 490, the court said: "No doubt is entertained that the earlier doctrine as to maintenance has been very essentially modified." At the date of the American revolution the English common law was in this country learned from Blackstone. He was the standard authority, and in his Commentaries, more than in the works of any other English author, did the lawyers of that generation study the English common law, and even now in the United States it is a text-book in all the law schools, and no effort to supplant it has ever been successful. Kent's Commentaries, notwithstanding the high estimate placed upon the work by the profession, is not regarded as a substitute for Blackstone, and an American lawyer who has not studied Blackstone's Commentaries would be an exception among thousands which the profession numbers.

The common-law doctrine of champerty, as explained by Blackstone, became the law of the States of this Union which adopted the common law, except in a few of the States whose courts have held that the common law of champerty was not applicable to their circumstances. In Richardson v. Rowland, 40 Conn. 565, the learned judge who delivered the opinion of the court observes that "among the States which discard the rule are Vermont, Delaware, Tennessee and Iowa." We may add to this list California and Texas. But even in Vermont, in Danforth v. Streeter, 28 Vt. 490, REDFIELD, J., delivering the opinion of the court, said: "There are probably other things coming more nearly to the idea of the common law definition of maintenance or champerty, such as carrying on suits for a share of the avails and thereby increasing litigation, and some others perhaps which the law will still regard as champertous and not countenance. But the present case does not seem to us of that character." Again he said: "The offense certainly does not exist in form in this State unless the common-law offense has been adopted as part of the law of this

Duke v. Harper.

State, which I am reluctant to believe was the purpose of the legislature unless with some qualifications." Unless the meaning of this language of the court be that the common-law offense of champerty has not been adopted as a part of the Criminal Code of Vermont and is not punishable as a crime there, but that a contract is nevertheless void, which, by the common law, is champertous, the above extracts are irreconcilable. We hold, however, that case to be an authority in support of the views we entertain of the case we are considering.

In the States of Kentucky, Alabama, Illinois, Indiana, Wisconsin, Ohio, Michigan, Massachusetts and Rhode Island, the commonlaw offense of champerty is recognized whether to the extent of being punishable as a crime or only as invalidating contracts, which at common law were champertous, it is unnecessary in this case to inquire. Judge STORY, in his Commentaries, says: "It is deemed an offense against public justice and punishable accordingly, both at the common law and by statute, as tending to keep alive strife and contention and to pervert the remedial process of the law into an engine of oppression." Story's Equity, § 1048. In Martin v. Clarke et al., 8 R. I. 402, the court said: "Whether we look therefore at the ancient common law, to the English statutes upon the subject, or to our own legislation, the conclusion must be the same, that champerty is an offense against the law. Being such it must avoid every contract." In New York they have champerty statutes which the courts of that State have evidently construed as covering the whole ground and repealing the common law. In Thompson v. Reynolds, recently decided by the Supreme Court of Illinois, but not yet reported, the following language was held by the court, WALKER, C. J., delivering the opinion, a manuscript copy of which is before me: "It thus appears that champerty was an offense at the common law, and our general assembly having adopted the common law of England as the rule of decision, so far as applicable to our condition, until modified or repealed, this must be regarded in this State as affecting all such contracts, and as being opposed to sound public policy." The agreement sought to be enforced there was one by which it was stipulated that plaintiff should receive for his services a portion of what should be received in the suit, and bear the expense of its prosecution. It was held void, as a champertous contract.

We will not undertake to cite all the cases, but the weight of

Duke v. Harper.

authority sustains the position that an act of the legislature of a State, adopting the common law, with only the usual qualifications contained in such act, adopts the common law in regard to champerty. And generally the courts which have so determined have also declared that the law of champerty, as explained by Blackstone, and not as defined by Coke and the older authorities, is that which obtains. Blackstone, fourth book, 135; Lathrop v. Amherst Bank, 9 Metc. 490; Allard v. Lamirande, 29 Wis. 502; Martin v. Clarke et al., 8 R. I. 397; Bayard v. McLane, 3 Harr. 212; Benedict v. Stuart, 23 Barb. 421; Ogden v. Des Arts, 4 Duer, 283. In Bayard v. McLane, supra, the court said, "this important ingredient of paying or contributing to the expenses of the suit seems ever since to have been regarded as essential to constitute the offense of champerty, being introduced into all the elementary works of authority as a part of the definition." Counsel for appellants misconceive the case of Allard v. Lamirande, 29 Wis. 502. It was an action by plaintiff to recover from defendant a tract of land. The plaintiff had judgment and defendant appealed. He claimed "that a champertous agreement between plaintiff and plaintiff's attorney relating to the compensation of the latter was proved on the trial, and that the court erred in denying the motion of the defendant to dismiss the action because of such agreement." The court held that the law against champerty obtained in that State. LYON, J., said: "In all the agreements which have been held by this court to be champertous, there were express covenants or stipulations that the champerters should pay the expenses of the litigation." Again: "Upon the whole we see no good reason founded on principles, either of justice, public policy, or professional propriety, for holding that the agreement between the plaintiff and his attorney is champertous, although upon the authorities it would be otherwise had the attorney agreed to pay the expense of the litigation."

In the case of Crow v. Harmon, 25 Mo. 417, the following was the agreement sued on: "I promise to pay G. W. Crow one hundred dollars if the M. T. Lewis county-road is not opened and kept open along the creek where it is now located, or if said Crow should make null the present proceedings of the court and commissioners, as already had and done by them. I also agree that if said road is opened and kept open that said Crow shall have all the damages that may ever be assessed me for the same." Messrs. Foster, Vories