Statement of the Case.

The suit referred to in that agreement was the suit for forcible entry and detainer brought by Johnson. Before any judgment was entered on the mandate of this court, and on August 24, 1887, the St. Louis, Iron Mountain and Southern Company tendered to Johnson $33,825, being the $25,000 mentioned in the agreement of October 6, 1881, and interest on the amount at the rate of six per cent per annum from that date to the date of the tender; which tender Johnson refused.

On this state of facts, the St. Louis, Iron Mountain and Southern Company filed a bill in equity against Johnson, as a citizen of Ohio, in the District Court of the United States for the Eastern District of Arkansas, setting forth the contract of April 23, 1879, and the other facts hereinbefore stated, the fact that the plaintiff had been made a party defendant to the forcible entry and detainer suit, the affirmance of the judg ment in that suit by this court, the agreement of October 6, 1881, the fact of the tender of the $33,825, and that Johnson was preparing to take actual possession of the eighteen miles of track, so as to cut off the plaintiff from all use of its line of railway from Marianna to Helena. The bill prayed for an injunction to restrain Johnson from any interference with the eighteen miles of track, and for a perpetual injunction against him from attempting to take possession of it or interfere with it.

On the filing of the bill, an order was made by the court, that on the payment by the plaintiff into the German National Bank of Little Rock, Arkansas, the depository of the court, to the credit of the court, of the $33,825, and the payment to the clerk of all costs in the forcible entry and detainer suit, a temporary injunction should issue, enjoining Johnson from issuing any process to put the plaintiff out of the possession of the eighteen miles of track, or disturbing its possession thereof, until the further order of the court in the premises; and that Johnson might receive said sum from the depository at his pleasure, without prejudice to any of his rights, and particularly his right to receive any further sum that might be due him, and for which he had a lien on the eighteen miles of

Argument for Johnson.

track, or a right to the possession of the same as security therefor.

Johnson appeared in the suit and put in an answer to the bill, setting up that the agreement of October 6, 1881, was not in the nature of an account stated, but was, and was intended to be, conditional and temporary, and that the condition had not been fulfilled. To this answer there was a replication, and proofs were taken.

On final hearing, the court made a decree that, on the plaintiff paying into the registry of the court the costs of the suit, and $1000 for the amount expended by Johnson in necessary preparations to take possession of the eighteen miles of track and operate the same as required by law, Johnson should be perpetually enjoined from executing the judgment at law in his favor for the possession of the eighteen miles; and that, if the plaintiff should fail to pay those sums into the registry of the court, for the use of Johnson, within ninety days from the date of the decree, the temporary injunction should be dissolved, and Johnson might sue out proper process and execute the judgment at law in his favor for the possession of the eighteen miles of road. Both parties took appeals to this court.

Mr. John J. Hornor and Mr. A. H. Garland for Johnson.

I. The appellant in an action of forcible entry and detainer instituted by him against the Iron Mountain and Helena Railroad, (to which appellee on its own motion had been made a party defendant in the District Court of the United States for the Eastern District of Arkansas, at Helena, and had taken upon itself the defence of said suit,) was adjudged entitled to the possession of said railroad, and a writ of restitution was ordered to be issued to place him in possession thereof, and the right was given to him to use, operate and control it, until paid in full the sum due him under the contract. The bill contains no allegation that anything has arisen since the institution of said suit or rendition of said judgment which rendered it inequitable that said judgment should not be

enforced.

Argument for Johnson.

Equity will interpose to restrain the execution of a judgment upon the suggestion of fraud, accident, mistake or surprise in procuring it. In the case at bar there is not only no suggestion of fraud, accident, mistake or surprise, but, on the contrary, the sole issue in the action at law was the right of appellant under his contract to keep possession of the road, and all the defences which legal acumen could bring forward to defeat this right were invoked. The bill suggests nothing which had arisen since the judgment in the action at law by which the appellant had forfeited, either at law or in equity, the right of possession given him by the contract, and confirmed by the judgment. Even if the application had been made to restrain the prosecution of the action of forcible entry and detainer, no injunction would have been granted unless it appeared that certain manifest irreparable injury would have followed the withholding the relief. Crawford v. Paine, 19 Iowa, 172; Lamb v. Drew, 20 Iowa, 15; Hamilton v. Hendrix, 1 Bibb, 67, 70; McGuire v. Stewart, 1 T. B. Mon. 189.

This principle of law is peculiarly applicable to the case at bar because appellee had utterly failed and refused to obtain any adjustment of the amount due during all the period when the right of possession was being litigated by it. As soon as it is adjudged a trespasser it demands a settlement upon its own terms, and, failing to obtain it, cries out that it, as well as the public, will suffer irreparable injury if a court of equity does not maintain it in its wrong doing, and actually not only tendering a less amount than the terms of the contract agreed should be paid, but a less amount than was actually due on its own interpretation of the contract.

A court of conscience will not place a wrong-doer in a better position than he has placed himself. It will leave him exactly where it finds him. Creath v. Sims, 5 How. 191, 205; Sample v. Barnes, 14 How. 70.

A court of equity will not protect a party in the enjoyment of that which he has obtained by a violation of law and thereby enable him to benefit by his own wrong. Collett v. Jones, 7 B. Mon. 586; Howard v. Current, 9 B. Mon. 493.

II. The relation between the parties was contractual and

Argument for Johnson.

the bill seeks through a court of equity to relieve appellee from the effects of the contract merely because the enforcement will now prove a hardship.

Mere hardship or inconvenience will not authorize a court of equity to set aside the terms of a written contract. Etting v. United States Bank, 11 Wheat. 59; Stettheimer v. Killip, 75

N. Y. 282.

Nor will a court of equity relieve a party from an improvident or foolish contract, if entered into without fraud or misrepresentation on the part of the other contracting party. Moffat v. Winslow, 7 Paige, 124.

III. The appellee is a trespasser in possession, after full defence made by it to the action at law for such trespass.

It has been judicially determined in the case of Iron Mountain & Helena Railroad v. Johnson, 119 U. S. 608, that not only a railroad, but this identical railroad, comes within the provisions of the statute of the State of Arkansas on the subject of forcible entry and detainer. It is alleged in the bill that Johnson is only entitled to the possession as security for his debt. If this be true, then under the laws of Arkansas all that the appellees were required to do before suing out the writ of unlawful detainer and replevying this railroad was to tender to Johnson in possession the amount due under the contract as construed by them. Under the statute the remedy for the appellees to recover possession after any unlawful holding over by Johnson, was as summary as this court adjudged it to be in favor of appellant when he was forcibly ejected from it. The remedy at law was full, complete and adequate and was the remedy provided by law when the contract was entered into in 1879. And as such must have been in contemplation of the parties who executed such contract. Pritchard v. Norton, 106 U. S. 124.

IV. Neither the bill, the order of the judge granting the injunction nor the decree perpetuating it, settled in any manner the rights of the parties under the contract of April 23, 1879. A sum of money is simply substituted as appellant's security, instead of possession of the road, as provided in the

contract.

Opinion of the Court.

Mr. John F. Dillon for the St. Louis, Iron Mountain and Southern Railway Company. Mr. Winslow S. Pierce and Mr. David D. Duncan were with him on the brief.

MR. JUSTICE BLATCHFORD, after stating the case, delivered the opinion of the court.

It is contended by Johnson that the court below had no jurisdiction to grant the injunction prayed for in the bill, because he had been adjudged, in the suit for forcible entry and detainer, to be entitled to the possession of the 18 miles of the road, and a writ of restitution had been ordered to issue to place him in possession thereof; that it is not alleged that anything had arisen since the institution of the forcible entry and detainer suit or the rendition of the judgment in it, which made it inequitable that such judgment should be enforced; that the relations between the parties were entirely contractual, and Johnson was seeking nothing not provided for by the contract of April 23, 1879; that the bill in this suit does not allege that such contract was obtained by fraud, accident, mistake or surprise; that the plaintiff in this suit is a trespasser in possession, after full defence made by it to the forcible entry and detainer suit, and, without restitution, seeks, through the interposition of a court of equity, to retain the fruits of its trespass and nullify the judgment at law; and that the bill in this suit does not seek to settle the rights of the parties under the contract of April 23, 1879, nor does the decree thereon settle such rights, but the order of injunction and the decree nullify such contract by substituting a sum of money as security to Johnson, instead of possession of the road, as provided therein.

But we are of opinion, as contended by the plaintiff, that, on the evidence in the case, the agreement of October 6, 1881, was a settlement of the amount due to Johnson, and was and is binding upon him. The tender by the plaintiff to Johnson of the $33,825, followed as it was by the payment into the German National Bank of that sum, on August 26, 1887, to the credit of the court, as appears by the record, changed the

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