upon an infant's lands and takes the profits, he is compellable to account for them, and will be treated as a guardian or trustee for the infant.1 And this is but following out the rule of law in the like case; for so greatly does the law favor infants, that if a stranger enters into and occupies an infant's lands, he is compellable at law to render an account of the rents and profits, and will be chargeable as guardian or bailiff.2 512. Other cases may be easily put where a like remedial justice is administered in equity. (a) But in all these cases it will be found that there is some peculiar equitable ground for interference, such as fraud or accident or mistake, the want of a discovery, some impediment at law, the existence of a constructive trust, or the necessity of interposing to prevent multiplicity of suits. It is perfectly clear that if there is a trust estate, and the cestui que trust comes into equity upon his title to recover the estate, he will be decreed to have the further relief of an account of the rents and profits. So in the case of bond creditors who come in for a distribution of assets, they may have an account of rents and profits against the heir in equity; for it is clear that they have an equity, and yet they are without remedy at law. So in 1 Newburgh v. Bickerstaffe, 1 Vern. 295; Carey v. Bertie, 2 Vern. 342; Hutton v. Simpson, 2 Vern. 724; Lockey v. Lockey, Prec. Ch. 518, 129; 1 Eq. Abridg. 7, Pl. 10, 11; Id. 280, A.; Bennet v. Whitehead, 2 P. Will. 644; 1 Fonbl. Eq. B. 1, ch. 3, § 3, and note (k); Dormer v. Fortescue, 3 Atk. 129, 130. 2 Littleton, § 124; Co. Litt. 89 b, 90 a; Pulteney v. Warren, 6 Ves. 88, 89; Com. Dig. Accompt, A. 2; Dormer v. Fortescue, 3 Atk. 129, 130; Curtis v. Curtis, 2 Bro. Ch. 628, 632; Townsend v. Ash, 3 Atk. 337. Ibid.; and Sayer v. Pierce, 1 Ves. 232; Curtis v. Curtis, 2 Bro. Ch. R. 628, 632, 633; Tilley v. Bridges, Prec. Ch. 252. 4 Dormer v. Fortescue, 3 Atk. 129; Coventry v. Hall, 2 Ch. Rep. 259. 5 Curtis v. Curtis, 2 Bro. Ch. R. 628, 629, 633. (a) For example the case of a mortgagee in possession who must account for net rents and profits. Post, vol. 2, § 1016; Scruggs v. Memphis R. Co., 108 U. S. 368; Shepard v. Jones, 21 Ch. D. 469; Mayer v. Murray, 8 Ch. D. 424. The case of a deed set aside for actual fraud practised on the grantor may furnish another example. See Hack v. Norris, 46 Mich. 587. A purchaser who before completion of the purchase exercises acts of ownership over the land to be purchased must pay interest on the price pending delay in the completion of the sale, and this though the delay is caused by the vendor, and the land is not occupied, so that he does not derive rents or profits from it. Ballard v. Shutt, 15 Ch. D. 122. See Rhys v. Dare Ry. Co., L. R. 19 Eq. 93; Fludyer v. Cocker, 12 Ves. 25; Attorney-Gen. v. Christ Church, 13 Sim. 214. the case of dower (of which more will presently be said); if the widow is entitled to dower and her claim is merely upon a legal title, but she cannot ascertain the lands out of which she is dowable, and comes into equity for discovery and relief, she will be entitled to an account of the rents and profits upon having her title established.1 So if an heir or devisee is compelled to come into equity for a discovery of title deeds and the ascertainment of his title, or to put aside some impediments to his recovery, there he will be entitled to an account of the rents and profits.2 513. Another case illustrative of the same doctrine as connected with torts, is where a recovery has been had in an ejectment brought to recover lands, and afterwards the plaintiff is prevented from enforcing his judgment by an injunction obtained on a bill brought by the tenant, who dies before the bill is finally disposed of. In such a case at law the remedy by an action of trespass for the mesne profits is gone by the death of the tenant, as actions of tort do not survive at law. But a Court of Equity will, in such a case, entertain a bill for an account of the mesne profits in favor of the plaintiff in ejectment, against the personal representatives of the tenant; for it is inequitable that his estate should receive the benefit and profits of the property of another person. It would be a reproach to equity if a man who has taken the property of another and disposed of it in his lifetime should, by his death, throw the proceeds into his own assets and leave the injured party remediless. It is true that the death of the tenant cannot be treated as the case of an accident against which a Court of Equity will relieve. But there seems the most manifest justice in holding that where property or its proceeds has come to the use of a party, the mere fact that the title has originated in a tort should not prevent the party and his personal representatives from rendering an account thereof. And in truth this is but following out the principles now adopted in Courts of Law, where the action for a tort dies with the person, but the right of 1 Ibid.; Curtis v. Curtis, 2 Brown, Ch. R. 620; 1 Fonbl. Eq. B. 1, ch. 3, § 3, note (k). 2 Dormer . Fortescue, 3 Atk. 124; Coventry v. Hall, 2 Ch. Rep. 259; Bennet v. Whitehead, 2 P. Will. 644; Pulteney v. Warren, 6 Ves. 88, 89. 3 Bishop of Winchester v. Knight, 1 P. Will. 407; Lansdowne v. Lansdowne, 1 Madd. R. 116. 4 Pulteney v. Warren, 6 Ves. 88; Garth v. Cotton, 3 Atk. 755; s. c. 1 Ves. 524; Id. 546. property in the thing or its proceeds survives against the personal representatives.1 514. There is also another distinct ground which, although not always followed out by the Courts of Equity in England, is of itself sufficient to maintain the jurisdiction; and that is, that in these cases a discovery is sought, and if it is effectual, then, to prevent multiplicity of suits, the court ought to decree at once. the payment of the mesne profits which have been thus ascertained. But a definite and very satisfactory ground to maintain the jurisdiction in such cases is, that it is inequitable that a party who suspends the just operation of a suit or judgment by an injunction should thereby deprive the other party of his rights and profits belonging to the suit or judgment, if the merits turn out to be ultimately in favor of the latter. He ought, under such circumstances, to be compelled to put the plaintiff in the original suit in the same situation as if no such injunction had intervened.3 515. Cases of WASTE by tenants and other persons afford another illustration of the same doctrine. (a) Thus where one 1 Hambley v. Trott, Cowp. R. 371; Lansdowne v. Lansdowne, 1 Madd. R. 116. There are recent statutes both in England and America which alter the common law in this respect; but this change has not taken away the original jurisdiction in equity. 2 See Jesus College v. Bloom, 3 Atk. 262; s. c. Ambler, R. 54; Whitfield v. Bewit, 2 P. Will. 240; s. c. 3 P. Will. 267; Dormer v. Fortescue, 2 Atk. 282; s. c. 3 Atk. 124; Townsend v. Ash, 3 Atk. 336, 337. 8 Pulteney v. Warren, 6 Ves. 88, 92. 4 We here speak of legal waste; for, if the waste be equitable only, of (a) Where timber is of a growth or in a state to make it good husbandry to cut it, this it seems may be done by a tenant without incurring liability, at least in this country. Drown v. Smith, 52 Maine, 141; Bond v. Lockwood, 33 Ill. 212. As to the law of England see Seagram v. Knight, L. R. 2 Ch. 628; s. c. 3 Eq. 398; Higginbotham v. Hawkins, L. R. 7 Ch. 676; Gent v. Harrison, Johns. 517; Harcourt v. White, 6 Jur. N. s. 1087. And what shall be done with the same after it has been cut may raise a question for equity. As timber is not annual profit of the estate, it cannot be appropriated, or at any rate consumed further than is necessary, by the life tenant. It should be sold and the price invested in favor of the remainder-man, the annual interest being made payable to the tenant during the continuance of his estate, and then to the remainder-man. See Gent v. Harrison, Johns. 517. If the money is not invested, the proceeds are held in trust for the benefit of the inheritance, and equity will enforce the trust and require an account. Phillips v. Allen, 5 Allen, 85. Equity may enjoin waste after a decree for partition. Bailey v. Hobson, L. R. 5 Ch. 180. And it may stay waste during the suit for partition. Coffin v. Loper, 25 N. J. Eq. 443. held customary lands of a manor and opened a copper mine in the lands and dug the ore and sold great quantities of it in his lifetime, and then died and his heir continued digging and disposing of the ore in like manner, upon a bill brought against the executor for an account and against the heir also for an account, it was decided that the bill was maintainable both against the executor and the heir. Lord Cowper seems to have entertained the jurisdiction upon general principles, and especially upon the ground that the tenant was a sort of fiduciary of the lord; and it was against conscience that he should shelter himself or his representative from responsibility for a breach of trust in a Court of Equity.1 516. This case has been supposed to have been decided upon the ground that, as to the executor, there was no remedy at law; and that, as to the heir, there was some fraud or concealment, and a necessity for a discovery; or that, as to him, an injunction was sought. Without some one of these ingredients it would be difficult to maintain the case in its apparent extent, for there would otherwise be a complete and perfect remedy at law. And in the later commentaries upon this case this has been the distinctive ground upon which its authority has been admitted.2 Lord Hardwicke seems to have thought that it being the case of a mine might distinguish it from other cases of waste, as the digging of mines is a sort of trade; and then it would fall within the general doctrine as to an account in matters of trade.3 517. Cases of waste by the cutting down of timber by tenants have given rise to questions of the same sort in regard to jurisdiction. In some of the cases upon this subject it seems to have been maintained that, although the remedy for waste is ordinarily at law, yet if a discovery is wanted, that alone, if it turns out to be important and is obtained, will carry the ulterior juris course a remedy lies in equity. Lansdowne v. Lansdowne, 1 Madd. R. 116; Marquis of Ormond v. Kynersley, 5 Madd. R. 369.(a) An injunction to stay waste will lie in favor of one tenant in common against another. Hawley v. Clowes, 2 John. Ch. R. 122. 1 Bishop of Winchester v. Knight, 1 P. Will. 407; s. c. 2 Eq. Abridg. 226. 2 Pulteney v. Warren, 6 Ves. 89, 90; Jesus College v. Bloom, 3 Atk. 262; s. c. Ambler, R. 54. Jesus College v. Bloom, 3 Atk. 262; s. c. Ambler, R. 54; Story v. Lord Windsor, 2 Atk. 630; Sayer v. Pierce, 1 Ves. 232. (a) But see Kingham v. Lee, 15 Sim. 396, as to Marquis of Ormond v. Kynersley. diction to account in order to prevent multiplicity of suits; ;1 a ground the sufficiency of which it seems difficult to resist upon general principles.2 But other decisions, and those which are relied on as constituting the established doctrine of the court, are differently qualified, and seem to require, in order to maintain the jurisdiction for an account, that there should be a prayer for an injunction to prevent future waste.3 (a) 518. Lord Hardwicke upon one occasion expounded this ground of jurisdiction very clearly (although he does not seem himself afterwards to have been satisfied with so limiting it 4), and said: 'Waste is a loss for which there is a proper remedy by action. In a Court of Law the party is not necessitated to bring an action of waste, but he may bring trover. (b) These are the remedies, and therefore there is no ground of equity to come into this court. For satisfaction of damages is not the proper ground for the court to admit of these sorts of bills, but the staying of waste; because the court presumes, when a man has done waste, he may do the same again, and therefore will suffer the lessor or rever sioner, when he brings his bill for an injunction to stay waste, to pray at the same time for an account of the waste done. And it is upon this ground, to prevent multiplicity of suits, that this court will decree an account of waste done, at the same time with an injunction. Just like the case of a bill for a discovery of assets; an account may be prayed for at the same time. And though originally the bill was only brought for a discovery of assets, yet to prevent a multiplicity of suits the court will direct an account to be taken.'5 Now if this reasoning be well founded 1 Whitfield v. Bewit, 2 P. Will. 240; Garth v. Cotton, 3 Atk. 756; s. c. 1 Ves. 524, 546; Lee v. Alston, 1 Bro. Ch. R. 194; Eden on Injunct. ch. 9, p. 206, &c. 2 See Barker v. Dacie, 6 Ves. 688; Jeremy on Eq. Jurisd. B. 3, Pt. 2, ch. 5, 510. p. * See Pulteney v. Warren, 6 Ves. 89, 90; Gherson v. Eyre, 9 Ves. 89; Richards v. Noble, 3 Meriv. R. 673. But see Lansdowne v. Lansdowne, 1 Madd. R. 116; Eden on Injunct. ch. 9, p. 206, &c. 4 See Garth v. Cotton, 3 Atk. 756; s. c. 1 Ves. 524, 546. 5 Jesus College v. Bloom, Ambler, R. 54; s. c. 3 Atk. 262; Pulteney v. Warren, 6 Ves. 89; Bishop v. Church, 2 Ves. 104; Yates v. Hambley, 2 Atk. 362; Watson v. Hunter, 5 John. Ch. R. 169; Smith v. Cooke, 3 Atk. 381. It may be said that on a bill for a discovery of assets an account is necessary (a) Higginbotham v. Hawkins, L. R. 7 Ch. 676. See Birch-Wolfe v. (b) Or an action for money had and received if the timber is sold. Gent v. Harrison, Johns. 517. |