#### Nichols to the use of Harrell v. Bunting.

From Robeson.

A. gave to B. an instrument of writing, staling that he had received from B. a deed for land, for which he was to pay B. $50, if he would take that sum, before any decision was made, as to the right of the land; but if B. would wait until A. could procure a decision, according to law, so that he (A.) would recover the land from the tenant in possession, he then promised to pay him §100. Held, tiiat this contract was not subject to the imputation of maintenance, but that a recovery might be had thereon,

ft is not the nature of the claim purchased,-that is, whether assignable or not, but its being a dormant one, and such an one as the possessor would not, himself, have prosecuted, which gives to the transaction the character of maintenance.

This was an action of debt for $100, upon the following instrument:

“Lumberton, 13tb June, 1830. Received of John Nichols, a deed for four hundred acres of land, which he purchased at Sheriff’s sale, as the property of Benjamin Blount, for which I am to pay him fifty dollars, if he thinks proper to take that sum, before any decision respecting the right takes place. Or, if he thinks proper to wait until I can procure a decision, according to law, and I recover the land from Benjamin Blount, the present tenant in possession, and William Townsend, jr. who has a deed for the said land from Elisha Cumbo, so that I have a good and clear title in law, I hereby agree and bind myself, in that case, to pay the said John Nicho Is, his heirs and assig-ns, the sum of one hundred dollars, and no more. In witness whereof) l have hereunto set my hand and seal, the day and date above written.

(Signed) “ RICÍTd. C. BUNTING.” [n.s.]

To which tiie Defendant pleaded “general issue — payment — set-off” The Plaintiff proved the sealing and delivery of the above instrument by Defendant; whereupon, the Defendant’s counsel objected to the Plaintiff’s recovery, on the ground that the contract was contrary to law, and void upon its face; and the Court being of that opinion, the Plaintiff was nonsuited.

*87A rule for new trial was obtained, which, on argu-incut, was discharged, and the Plaintiff appealed to this Court.

Henderson, Judge.

Maintenance consists in stirring up, promoting or encouraging contentions and quarrels, as Well in the country as in Courts of Justice. It is unnecessary to consider the various acts, which, in law, have been adjudged to amount to tin's offence •, but I shall confine myself, solely, to that class of them, which relates to the offence of purchasing a rigid of action, or, as it is called, a right of going to law. To purchase a dormant title, anil to bring suit on it, is said to he main-tcnanCe3 that is, a title which the proprietor, through choice, would not have set up, but sabered to have slept, but from the officious intermeddling of the purchaser, who has caused a law suit to be brought, for what the person really injured, would have permitted to pass unnoticed j and this, whether the title he good or bad. And a person may he guilty of maintenance, in purchasing a negotiable security, as a bill of exchange or pro--jnissory note, as well as a mere chose in action, or right of suing, not transferable by assignment or any oilier method ; for it is not the nature ol' the claim, that is, whether assignable or not, but its being a dormant one, (by which I do not mean an old one, only,)' and such an one as the possessor would not, himself, have prosecuted, which gives to the transaction the character of maintenance. The claim being old, or dormant, is only matter of evidence that the party did not mean to assert it. — (Bac. M. "Maintenance,”) where it was held not to be maintenance, for the purchaser to carry on a suit, (for a trespass,) commenced before the purchase. Bui the daily practice of our Courts, is the best exposition of the law. We see in every Court, from the highest to the lowest, suits carried on, by purchasers of ................ ' • or<-inn, in the name of the 0:' ' -al pro-*88pnctor, or the legal owner, the thing which they purchased not being assignable; and until within a very few years ago, that equitable right was recognized in onr Courts of Law, both here and in England, and when such cognizance of these equitable rights was disannull-ed, it was on very different grounds from those of encouraging maintenance; and it is every day’s practice tp have two demises in a declaration in ejectment, one the title of the vendor and one on that of the vendee, whenever there is any doubt as to an adverse possession, at the time of the sale. Our Courts would not permit such a thing, if the bare buying a disputed title, a litigious right, was a maintenance; to which.may be added, that it. is a principal branch of Equity practice, to protect and enforce purchases of choses in action. I am satisfied that there should be a new trial.—

Aud Hade, Judge, was of this opinion also.

Taylor, Chief-Justice.

This contract appears to me, to be founded on a consideration perfectly just in itself, and reconcileable, on a correct view of the authorities, with the most authentic expositions of positive law. The proper definition of maintenance, entirely excludes this case, from all participation in its criminality ; it signifies a malicious, or, at least, an officious interference in a pursuit, in which the party has no interest to assist, either with money or advice, to prosecute or defend the action.' — (4 Bl. Com. 134.)

The common law maxim is, that nothing in action, entry or re-entry, can be granted; the reason assigned is, for the avoiding of maintenance, supporting of rights and stirring up of suits; for so, under colour thereof, pretended titles might be granted to great men, whereby right might be trodden down, — (Co. Litt. 214.) Now, although nothing passed by this deed, so as to enable this Defendant to recover, in his own name, against the tenant in possession, yet it passed such an equitable title. *89that, in tlie event of a recovery, a Court of Equity would have completed Ids title by decreeing a deed. The policy of the common law forbade that a tenant should aliene his fee or tenure without the consent of the lord, or that the lord should aliene his seignory without the consent or attornment, of his tenant. A feoffment was void without livery of seisin, and possession was necessary to enable a man to make livery of seisin. But if the deed were even an act of maintenance, yet, as between the parties to it, it was effectual. Nichols could not recover the land, in opposition to his deed to Bunting, for, as to alienor, it is an estoppel 5 for it seems to be thought, that a feoffment upon maintenance, or cham-perty, is good, as between the feoffer and feo{Fee, and is only void against him who hath right. — (Co. Litt. 369, a, Cro. Eliz. 445.)

The strict docirine of the common law, in regard to maintenance, would he fraught with inconvenience, if applied in all its rigour, to the existing circumstances of this State. Here, a considerable portion of the land remains, in a great degree, uncultivated, and, in many instances, remote from the observation of the owner. Partial settlements may be made upon it, and possession held, the precise extent of which may be unknown to the owner, and difficult to ascertain, from ignorance of the claim of the adverse tenant, or the uncertainty of tiie boundaries. If, believing himself to be in the con-«tractive possession, (a term well understood,) he sells his land, and the purchaser cannot recover the land from the person in possession, nor his purchase-money from the vendor, on account of the illegality of the contract, very great injustice will be the effect. In England. the lands are all actually possessed, either by the owner himself or by some one under his authority ; and it can scarcely happen there, that a man can, ignorantly, sell land of which another is in the adverse possession. Yet even there, the law is much relaxed from its *90ancient strictness, and the old rule, that for avoiding maintenance, a chose in action cannot be assigned, or granted over to another, is so diluted by exceptions, as £0 amount on]y to this, that the grantee or assignee of a deed or bond, cannot sue in his own name. Buthe may sue in the name of the assignor or grantor, and the Court of law will consider the assignment of an apprentice, or an assignment of a bond, as things which are good between the parties, and as contracts which, the law will recognize. But what comes nearer to the present case is, that the assignment of a chose in action, is a good consideration of a promise; and if, instead of a bond, the Defendant, in this case, had promised to pay the money, in the event of a recovery being had against Blount, he would have been bound by such promise.— (Sid. 212 — 2 Bl. Rep. 820.) So an assumpsit, in consideration of a conveyance to A. as he shall appoint, of all the lands called B. though it be said that the Plaintiffs had nothing in the tenements, (2 Lev. S3,) and in consideration of the release of an equity of redemption. ■ — (Ld. Ray. 662.)

In this case, the consideration was the transfer of a right to the Defendant, which, by the subsequent sanction of the law, he.was enabled to enjoy; and which it was not in the power of the Plaintiffs to deprive him of, under any circumstances. It is difficult to conceive what would form a consideration for a promise, if this would not.

But independently of any other view of the case, an adverse possession ought not to be piesumcd, but a holding over and claiming possession against the owner, ought to be proved. The Sheriff having conveyed all the title of Blount to Nichols, who thereby became tenant in fee, it is possible that the possession also would have been surrendered, if demanded ; at least the contrary does not appear. In such a case, Blount must be considered as tenant at will to Nichols, whose aliena*91tion of the land is not the transfer of a mere right, but amounts to the determination of the estate at will. — (2 Bl. Com. 14G — I Johns. Mep. 45.) There must be a new trial.