A contract by an attorney to pay witness fees out of a contingent fee to be allowed him for successful services in a suit is cham pertous ; Barngrover v. Pettigrew, 128 Ia. 533, 104 N. W. 904, 2 L. R. A. (N. S.) 260, 111 Am. St. Rep. 206, and so is a contract stip ulating that the client shall not compromise or settle his claim without the consent of the attorney ; Davy v. Ins. Co., 78 Ohio St. 256, 85 N. E. 504, 17 L. R. A. (N. S.) 443, 125 Am. St. Rep. 694. Some cases have held that an attorney is under absolute disability to pur chase from his client the subject of his re tainer ; 12 Ir. Eq. 1; West v. Raymond, 21 Ind. 305; such purchases have been held in other cases to be presumptively void ; Stu binger v. Frey, 116 Ga. 396, 42 S. E. 713 ; Roby v. Colehour, 135 Ill. 300, 25 N. E. 777; or to be voidable at the option of the client ; Lane v. Black, 21 W. Va. 617 ; they will be closely scrutinized by the court ; Mitchell v. Colby, 95 Ia. 202, 63 N. W. 769 ; Barrett v. Ball, 101 Mo. App. 288, 73 S. W. 865 ; but they will not be set aside if they were "open, honest and in every way fair to the client" ; Vanasse v. Reid, 111 Wis. 303, 87 N. W. 192. Many cases have refused to hold the attor ney to be under an absolute disability in this respect ; Handlin v. Davis, 81 Ky. 34 ; Cox v. Delmas, 99 Cal. 104, 33 Pac. 836 ; Klein v. Borchert, 89' Minn. 377, 95 N. W. 215. The attorney, to sustain such a purchase, must establish the utmost good faith and fairness and adequacy of consideration and that he gave full information and disinterested ad vice to the client ; Byrne v. Jones, 159 Fed. 321, 90 C. C. A. 101; Dunn v. Record, 63 Me. 17; Day v. Wright, 233 Ill. 218, 84 N. E. 226 ; he must prove uberrima fides; Young v. Murphy, 120 Wis. 49, 97 N. W. 496; this rule has been applied to purchases made after the relation has terminated ; 33 Beay. 133 ; Barrett v. Ball, 101 Mo. App. 288, 73 S. W. 865.
A contract by one not acting as attorney, for a specific consideration, to defeat the probate of a will, is void as a species of champerty or maintenance ; Cochran v. Zach ery, 137 Ia. 585, 115 N. W. 486, 16 L. R. A. (N. S.) 235, 126 Am. St. Rep. 307, 15 Ann. Cas. 297; but an agreement by one having a claim against a decedent's estate to do ev erything proper and legitimate to aid the heirs in recovering the estate in considera tion that they would pay his claim is not void as champerty or maintenance ; Smith v. Hartsell, 150 N. C. 71, 63 S. E. 172, 22 L. It. A. (N. S.) 203.
In England contingent fees to solicitors are void by a statute of 1870. They are unknown in the case of barristers.
In England, in New York, and probably most of the states, the purchase of land, pending a suit concerning it, is champerty; and if made with knowledge of the suit and not pursuant to a previous agreement, it is void ; 4 Kent 449 ; Bowling's Heirs v. Roark (Ky.) 24 S. W. 4; Sneed v. Hope (Ky.) 30 S.
W. 20 ; Snyder v. Church, 70 Hun 428, 24 N. Y. Supp. 337; this doctrine, established by the English statutes, Westm. 1, c. 25, Westm. 2, c. 49, and 28 Edw. I. c. 11, became part of the common law, and either as such or by statutory adoption became engrafted upon the law of almost all the states. The principle extends to the purchase of any cause of action, as a patent which has heed infringed ; Keiper v. Miller, 68 Fed. 627; unpaid promissory notes ; Hamilton v. Gray, 67 Vt. 233, 31 Atl. 315, 48 Am. St. Rep. 811. In Pennsylvania a person may convey an interest in lands held adversely to him ; Mur ray's Estate, 13 Pa. Co. Ct. 70.
See BUYING TITLES.
The champerty of the plaintiff is no de fence in the action concerning which the con tract was made. A railroad company sued for an overcharge cannot defend by show ing that the plaintiff made a champertous contract with his attorney to induce the com pany to accept the overcharge and then sue for the penalty ; Railway Co. v. Smith, 60 Ark. 221, 29 S. W. 752 ; nor is such defence good in actions° for personal injuries; Omaha & R. V. Ry. Co. v. Brady, 39 Neb. 27, 57 N. W. 767 ; nor can a purchaser of a disputed title defend against a prior unrecorded deed to plaintiff's attorney for one-half of the land, on the ground that the latter was given under a champertous contract; Chamberlain v. Grimes, 42 Neb. 701, 60 N. W. 948; and generally the objection that a contract is champertous cannot be set up by a stranger to it or in defence of a suit brought under it; Ashurst v. Peck, 101 Ala. 499, 14 South. 541; Pennsylvania Co. v. Lombardo, 49 Ohio St. 1, 29 N. E. 573, 14 L. R. A. 785; Gilkeson Sloss Commission Co. v. Bond, 44 La. Ann. 841, 11 South. 220 ; Euneau v. Rieger, 105 Mo. 659, 16 S. W. 854.
An attorney suing as "administrator" to recover for a death by wrongful act may be guilty of a champertous agreement with the beneficiaries, which may be pleaded as a de fence to the suit under a statute investing the courts with equity powers for the pur pose of discovering and preventing the of fence ; Byrne v. R. Co., 55 Fed. 44. For an analysis of the cases, see Wald's Poll. Cant. 293.
As to agreements between attorney and client regarding fees in divorce cases, see