Page:Federal Reporter, 1st Series, Volume 10.djvu/545

 m'iNTYRE V. THOMPSON. 533 �date Buch contract. The agent is not a party of record, and the plaintiffB have a right to agree to pay him for his services as much as they deem proper. This court bas no jurisdiction of the crime of champerty, and indictments for this offence are scarcely ever found in the practice of the courts. In the civil department of the law it is sometimes referred to as affecting contracts, and I believe that it is generally agreed, botb in courts of law and equity, that any contract founded on a champertous consideration is illegal and void as being against public justice. �As I have already stated, this question bas nothing to do with the merits of this case, and I have only referred to it because it was urged in the argument, and 1 wish to withdraw it entirely from your consideration. �There is another matter, which was much discusscd by counsel •while introducing evidence, which I desire now to eliminate from the case. The plaintiflfs claim title as the heirs at law of Henry Yates and Arcbibald Mointyre, who formerly carried on the business of mining under the firm name of Yates & Mcintyre. For the purpose of proving their title, the plaintiffs proposed to show that the defend- ants claimed under Yates & Mcintyre, and under a rule of law can- not dispute their title. There is a well-established rule of law in actions for the recovery of land that where both plaintiff and defend- ant claim title under the same person, neither can deny the title of him under wbom both claim. This is not strictly an estoppel, but a rule of the court founded in justice and convenience. The plaintiff offered in evidence a deed executed by a confederate recelver to one L. C. Thompson, showing that the land in controversy was sold under a decree of a court of the confederate states, condemning the land as the property of the heirs at law of Yates & Mcintyre, who were residents of the United States, and alien enemies. Atthe time of the condemnation and sale in November, 1862, the government of the confederate states was a de facto government, exercising belligerent rights, and had instituted proceedings against said land to condemn and sell the same as forfeited to said government. The proceedings for confiscation were against the lands and not the owners, and the purchaser of the lands claimed not their title, but one paramount, derived from the sovcreign in whom the title had become vested by operation of law. �If the confederate government had been suceessful in establishing itself as a government de jure, the title of the purchaser would have been complete. At the time he made the purchase he was no» bound ��� �