Tomb, qui tam, &c. against Sherwood

Van Ness, J.

The plaintiff was in possession of the land, under a deed in fee given upon a valuable consideration, occu-. pying and improving it as his own; and while he was thus in possession, and, which is equally important, while Mooney was out of possession, the defendant purchased the equitable interest claimed by Mooney under the surveyor-general’s certificate. It is material to observe, that, long before the defendant’s purchase, Mooney voluntarily surrendered the possession of the land to Williams, under whom the plaintiff claims, after having been Williams’s tenant for a year. Two questions arise upon the merits of this case. 1st. Whether the purchase by the defendant was of a pretended right or title within the statute ; and, 2nd. If it is, what shall be the amount of the recovery, 400 dollars, or 1,000 dollars ? -

1st. The words of the statute are, that no person shall buy or sell any pretended right or title, or make, or take, any promise, grant, or covenant, to have any right or title of any person to any lands, &c. Under this statute, it is well settled that it is immaterial whether the right or title purchased, or sold, be good or bad; for if it be ever so good, if the vendor is not.in possession, nothing passes by the deed, and the case comes within the statute. It has also been held, that the sale of a copyhold estate, or giving a lease for years, when the vendor or lessor is not in possession, is within the- statute. Lord Coke says, 4f the words of the statute be, any pretendedright, and, therefore, a lease for years is within the statute; for the statute saith not the right, but any right, and the offender shall forfeit the whole value of the land.”’ And again: “ Also the, statute speaks of any right or title to any land. A customary.right, or a pretence thereof to lands holden by copy,, is within this, statute^’ (Co. LittJ369. á. and b.) The statute intended to prohibit the-sale of pretended rights, by which the possession of another-might be disturbed. And- it ¡appears-tame -that a purchase like the present is fully within the meaning and, spirit, as it indisputably is" within the words of, the act« The defendant, by getting possession of the surveyor-general’s certificate, and the assignment of it by Mooney, had. it in his power, perhaps, to defeat the plain tiff’s, right, or, at all events, to. give him great -trouble and vexation in perfecting his title» It was a dormant and abandoned claim of Mooney, which the defendant bought .for the express purpose of harassing the plaintiff, and to disturb his right and possession. The case Shows,.that, by virtue of this very, purchase the.defendant extort* éd a considerable sum, of money from the plaintiff by threatening to dispossess him. , ,

2d- Wé have more than once decided that when.a persbn enter* ed, and was in possession, under an agreement- to phrchase-aii: entire lot or pieceof land, and cultivated and improved a part,, claiming the whole as his own, that he was to-be deemed to be in the actual possession of the whole, and that a deed,given by a stranger, though he had a good title, was inoperative. The assignment in this case is of> the whole lot described in the sur* yeyor-general’s certificate, and there is no. pretence for saying that Mooney Was in possession of any part of it. He had,-in’ fact,, actually surrendered’ the possession m Williams, long be*, fore the defendant, purchased from him his pretended; right». The’ defendant was fully apprised of ¡the actual, situation of the. lot, ¿.ild bought ■ it with full knowledge of the plaintiff ’s . sights. I do not see,, therefore, upon what;ground it can, be contended that the defendant is not liable for the value of the - entire Jot, if he is liable at all. I am of opinion, therefore, fhat the- plaintiff is entitled to judgment for 1,000 dollars, being tjje value of the whole lot, as found by the jury,

Thompson, Ch. J.? and Yates, J„ were of the same opinion,

Spenceb, J„

dissented, observing, that the case presented iacts establishing a fraud, rathér than an offence against the. statute. It is conceded, that be the title ever-so valid, if thé lands lb.e held adversely- to that, title, it wrpuld; b,e champerty to pur*. chase such valid title; but if the title purchased be valid, and the land is held under, or subservient to, that title, it would not be champerty. It is held not to be sufficient to show that the seller had not been in possession a year before, without averring that he had a pretended right or title, because that is the point of the action. (2 Hawk. b. 1. ch. 86. s. 10.)

The intent of the statute was to prevent any person, having a disputed title, from conveying it-to strangers. (Bac. Abr. Maintenance, E.)

Here we are warranted in saying, that the plaintiff knew that the lands had been taken up by Mooney, under the surveyor-general’s certificate, and that it was sold under the fi. fa. against Mooney, in subserviency to that right; and we must say, that the plaintiff acquired, by his purchase, the bare right of possession, subject to the right of the state. This is, then, not a case within the purview of the statute ; the right of the state was not a pretended right; for the plaintiff held under the state without any title, and not having acquired by his purchase a right to grant.

Again, the defendant taking an assignment of the surveyor-general’s certificate was not taking a promise, grant, or covenant to have any right or title; the operation of law might be, that he would obtain a grant by the production of the certificate and the payment of the price of the land, yet it- was not in itself a promise, grant, or covenant, that he should have the land. This is a penal statute, and to bring the defendant within it, he must be brought within the very terms. I cannot view the case as within either branch of the statute, and, therefore,., think the defendant is entitled to judgment.

Platt, J., was of the same opinion.

Judgment for the plaintiff.