10. SAME-BAD FAITH.

Where a party had, in bad faith, entered upon the property of another and for an enormous price ($500,000) sold and conveyed it with warranty, and to avoid his liability as vendor and warrantor, i. e., to escape being compelled to return to his vendee the price, and repay the fruits which the evicted vendee would be required to pay to the owner, in bad faith, hinders the restitution of the land and its fruits to the owner, and keeps the owner from recovering possession for a period of 50 years, the owner can recover for the rents and profits from the party hindering as a constructive possessor.

11. RENTS AND PROFITS.

In ascertaining the rents and profits of real estate, where the disseizin and possession have been in bad faith, the account must include not only the rents, revenues, and values for use actually received, but also those which the evidence shows would have been received with ordinary good management. Since the law requires the court in such a case to decide from evidence extrinsic to the actual receipts, satisfactory evidence may be found in the rents for the very period in question actually derived from numerous other lots, adjacent, similarly situated, and no better capacitated, and from ground rents during and for the same period.

Pontchartrain R. R. v. Carrollton R. R. 11 La. Ann. 258, 259.
McGary v. City of Lafayette, 12 Rob. (La.) 668; 4 La. Ann. 440.

12. SAME.

The burden which bad faith places upon the defendant, according to the civil law and the jurisprudence of Louisiana, while it should lead to the assessment of no damages or compensation beyond those actually suffered, requires the court to adopt conclusions fully warranted by evidence, though, through the fault of the defendant, it be derived in part from the rents and profits of other property adjacent and similarly situated, and no better capacitated. 13. SAME.

An account for rents and profits should be taken and stated as follows: The rent or income should be ascertained for each year separately, and upon the amount so ascertained for each year interest should be computed down to the time when the account closes, so that there may be interest upon each yearly sum falling due, but no interest upon interest.

Gaines v. New Orleans, 15 Wall. 634.

Wm. Reed Mills and Alfred Goldthwaite, for complainant.
J. R. Beckwith and E. H. Farrar, for defendant.

BILLINGS, J. This cause is before me on a submission for a final decree upon bill, answer, replication, exhibits, and depositions, and upon exceptions to the report of the master. There can be no doubt but that this cause is one over which a court of equity must take jurisdiction. It is an incident, and, in its nature, a supplemental proceeding, to a litigation as to the heirship and title of the complainant to certain real property, which has been conducted in this court between the parties hereto for upwards of 40 years, and always upon the equity side of the court. It is a suit for a discovery as to the means which have been employed by the defendant throughout this long period to prevent and hinder the complainant from recovering possession of this real property. See Comyn, Dig. "Chancery 3 B 1," where it is laid down that a bill for discovery lies even when the action to be supported sounds in tort. It is a suit for an accounting as to rents and profits of this real property for the period of 45 years, which must be taken according to the laws of Louisiana, and in which, therefore, the defendant must be charged with the v.17,no.1-2

rents and profits which have been or ought to have been annually received and credited with the yearly expenditures for reclamation, improvements, and taxes, and that, too, with reference to hundreds of lots of ground. It is an account, the correct statement of which by the master occupies 300 pages, and upon which the record shows he has been occupied almost three years. It is, therefore, an account of a most complicated and ramified character, which could not be dealt with upon a trial at law at nisi prius.

The fact that the constitution of the United States guaranties to all suitors in common-law cases, where more than $20 is involved, a trial by jury, should insure precision on the part of courts in discriminating as to the proper character of causes, but cannot change the answer to the question as to whether a cause is of equitable cognizance. That must depend upon whether it be such a cause as the English court of chancery would have taken cognizance of at the time of the adoption of the constitution of the United States.

The case of Root v. Ry. Co. 105 U. S. 189, relied on by defendant, by no means excludes this case from the equity courts. On the contrary, while it holds that where there is no element of trust, and where there are no other special circumstances which would authorize jurisdiction in equity, an action for an account is an action at law; it adds the express reservation (page 216) that "an equity may arise out of, and inhere in, the nature of the account itself, if it render a remedy in a legal tribunal difficult, inadequate, and incomplete."

In Hipp v. Babin, 19 How. 271, there is the same exception made. That was a suit for a naked accounting as to rents and profits. There were no equity features. The court in declining jurisdiction (page 279) says: "To authorize jurisdiction it must appear that the courts of law could not give a plain, adequate, and complete remedy;" and that that case did not show that justice could be administered with less expense and vexation in a court of equity than in a court of law."

In Ex parte Bax, 2 Ves. Sr. 388, Lord HARDWICKE said:

Indeed, where

"In an action at law an account is to be taken by auditors. the auditors have taken the account, and on charging and discharging the items issues may be joined, and so many issues then may be tried, actions at law, therefore, for accounts are so few because so long time is required."

In O'Connor v. Spaight, 1 Schoales & L. 309, Lord REDESDALE said, (this was an action for an account by a landlord against a tenant for rent:)

* *

*

"The ground on which I think this is a proper case for equity is that the account has become so complicated that a court of law would be incompetent to examine it upon a trial at nisi prius with all neccessary accuracy. This is a principle on which courts of equity constantly act by taking cognizance of matters which, though cognizable by courts of law, are yet so involved with a complex account that it cannot properly be taken at law."

In Corporation of Carlisle v. Wilson, 13 Ves. Jr. 278, the lord chancellor (ERSKINE) says:

"The principles upon which courts of equity originally entertained suits for an account when a party had a legal title, is that, though he might support a suit at law, a court of law either cannot give a remedy, or cannot give so complete a remedy as a court of equity."

In Weymouth v. Boyer, 1 Ves. Jr. 424, Mr. Justice BULLER, sitting for the chancellor, (Lord THURLOW,) says:

"We have the authority of Lord HARDWICKE that if a case was doubtful, or the remedy at law difficult, he would not pronounce against the equity jurisdiction. The same principle has been laid down by Lord BATHURST."

In Fowle v. Lawrason's Ex'r, 5 Pet. 495, the supreme court says: "In all cases in which an action of account would be the proper remedy at law, the jurisdiction of a court of equity is undoubted. In transactions not of the peculiar character of those in this case, great complexity ought to exist to give jurisdiction."

In Barber v. Barber, 21 How. 591, the court says:

"It is not enough that a court of law also has jurisdiction; the remedy at law must be as practicable and efficacious to the ends of justice and its prompt administration to exclude."

In Mitchell v. Great Works Manuf'g Co. 2 Story, 653, Justice STORY, overruling a demurrer to a bill for an account, says: "Considering the complications and changes of interest, the claims cannot be adequately examined except in a court of equity."

In Nelson v. Allen, 1 Yerg. 372, the court say:

"It is contended by the defendants that, as the plaintiff's title is a pure legal title, he has a remedy at law for the mesne profits, and that, if his bill had been demurred to, it would have been dismissed. This position is wholly gratuitous, unsupported either upon principle or authority. It has been overlooked by them that courts of equity have concurrent jurisdiction with courts of law in cases of account."

See, also, Judge WHYTE's review of the English cases at page 373. "So there shall be an account in equity for mesne profits." Comyn, Dig. "Chancery 2 A 1." "But not till possession has been recovered, as trespass will not lie at law for them till then." Comyn, Dig. "Chancery 2 A 2."

"Equity will decree an account of rents and profits whenever the account is intricate and complicated, and therefore not easily adjusted at law. And this holds not only where the matters grow out of a privity of contract as between landlord and tenant, but in many cases of adverse and conflicting claims." Holc. Eq. 85. See, also, 1 Mad. Ch. 868; Cooper, Eq. Pl. 134; Ludlow v. Simond, 2 Caines' Cas. 40, per THOMPSON, J.; Knotts v. Tarver, 8 Ala. 743; and Printup v. Mitchell, 17 Ga. 558.

From an early date equity decreed an account of mesne profits when there were particular circumstances which involve an equity.

By the lord keeper, in Tilly v. Bridges, Prec. Ch. 252. This exception includes all cases which involve an equity which cannot be made available at law. 1 Fonbl. Eq. marg. pp. 14 and 15, and note, (4th Am. Ed. by Laussat.) If the recovery of the demand had been unconscientiously obstructed, that of itself constituted an equity. Curtis v. Curtis, 2 Brown, Ch. 633, per Sir LLOYD KENYON, afterwards Chief Justice and Lord KENYON.

The gravamen of the bill of complaint is that the defendant, by her direct efforts, persisted in mala fide, has kept the complainant out of possession for 47 years, and until any remedy by an account at law is practically impossible. This allegation alone, according to the principle laid down in Pulteney v. Warren, 6 Ves. 73, would give jurisdiction.

But there is another distinct ground of equity jurisdiction here. The complainant has recovered judgment against several hundred actual tenants for rents and profits for varying portions of this long period. These tenants are insolvent. The defendant in this action is the warrantor of all those tenants, and whatever they owe the complainant the defendant owes to them. The defendant is not only a warrantor, but she is a warrantor who has enriched herself by purchasing in bad faith the complainant's property and selling it at a profit of $500,000. This sum she has retained, and has had the use of since the year 1837. The complainant has no remedy at law upon this warranty from want of privity. Equity, therefore, gives her a right of action. This case is, in principle, the case of Riddle v. Mandeville, 5 Cranch, 322, where "an indorser of a promissory note, who had been adjudged to have no remedy at law against a remote indorser, was held to be entitled to maintain a suit in equity against him, on the ground that the defendant, as the original indorser of the note, was ultimately responsible for it, and that equity would decree the payment to be made immediately, by the person ultimately responsible, to the person actually entitled to receive the money.' Page 329.

It is but another application of the principle laid down by Mr. Story in his Equity Jurisprudence, § 687, that where an owner and lessor would have no action at law against an under-tenant upon his covenant for rent, still, if the original tenant was insolvent, equity would give the owner a direct action against the under-tenant. The reason assigned by Mr. Story is that the under-tenant should not be permitted to enjoy the profits of possession without accounting to the original lessor, because, if the original lessee had paid, he would have had a remedy over against the under-tenant.

It is but another application of the well-settled principle recognized in the familiar case put by Chief Justice MARSHALL, Id. 5 Cranch, 330, of a right of action by a creditor of an estate against the legatees of his debtor. "If," says Chief Justice MARSHALL, “doubts of his right to sue in chancery could be entertained while the executor was solv

ent, none can exist after he has become insolvent. Yet the creditor would have no legal claim on the legatees, and could maintain no action at law against them. The right of the executor, however, may in a court of equity be asserted by the creditor, and as the legatees would be ultimately responsible for his debt, equity will make them immediately responsible.

The principle here to be invoked, and which is controlling, is that equity will not allow a party ultimately liable, for his own advantage, to keep the owner out of possession, and an intermediate and insolvent party in possession, who is, in turn, responsible to the lawful owner, and thereby to enrich himself out of the property of that owner, thus possessed, and escape liability to him for want of a mode of action.

This principle is laid down in broader terms by Lord Justice TURNER in the case of the Emperor of Austria v. Day & Kossuth, 3 De G., F. & J. (64 Eng. Ch.) 217, thus:

"The highest authority upon the jurisdiction of this court, in enumerating the cases to which the jurisdiction of this court extends, mentions cases of this class where the principles of law by which the ordinary courts are guided give no right, but upon principles of universal justice the judicial power is necessary and the positive law is silent."

The conclusion, therefore, is unavoidable that this suit is properly brought as a suit in equity:

(1) Because, as a bill for discovery of the participation of the defendant in, and her advantage from, the provoking and maintaining a litigation which, commenced in bad faith, has, upon various pretexts, been made to keep the complainant out of the enjoyment of a large inheritance for 47 years; and,

(2) Because, whether the bill of complaint be viewed as an incident to a litigation which has lasted in a court of equity for half a century, calling for an account for rents and profits for that whole. period, as to a vast number of separate lots, and calling for a distinct and detailed statement of account for each lot, under a system of law by which, on the one hand, the annual profits or value for use, and on the other hand the yearly disbursements for ameliorations and taxes, must be ascertained and stated, and where it is made to appear that this exhaustive complexity is altogether due to the hindrances which have been interposed by the defendant; or whether the bill of complaint be viewed as leveled at a defendant who, under an obligation to indemnify a possessor in case of eviction, and for the purpose of retaining an enormous price unjustly obtained, and avoiding a liability for fruits which must be rendered to the real owner upon her recovery of possession, has, directly as well as through that possessor, by all manner of legal artifices, in bad faith, kept that owner out of possession of her own, that possessor having no means wherewith to respond to the owner when evicted and adjudged to deliver up the property with its fruits,-whether the bill of