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*. *293chase 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.