REPORTER.
rCllts ana profits which have been or ought to have been annually received and credited with the Jearly 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 b] 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 constit<ltion of the United States guaranties {o all suitors in common-law cases, wherG more than $20 is involYed, 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 tal\en cognizance of at the time of the adoption of the constitution of the United States. The case of Root v. By. Co. 105 U. S. lSD, 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 accour.t is an action at law; it adds the express reservation (page 216) that "an equity may 'arise out of, and inhere in, the nrrture of the account itself, if it render a remedy in a legal tribunal dUjicult, inadequate, and incomplete." . In Hipp v.Babin,19 How. 271, there is the same exception made. That was a 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 onaw 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 Yes. Sr. 388, Lord H.l.RDWICKE said: n In an action at law an account is to, be taken by auditors. Indeed, where the auditors have taken the account, and on charging and "isc!Htrging the items issues may be joined, and so Inany issnes then may be tl'ied, actions ,at law, therefore, for accounts are so few because so long time is required."
In O'Comior v. Spaight, 1 Sl'boales & L. SOD, Lord RE"JESDALE said, (tbis was an action for an account by a landlord against a tena.lt for rent:) .. The ground on wUch I think this is a proper C:lse for equity is that tile accollnt has become so complicated tllat a court of law would be incompetent to examiuE' it upon a trinl at nisi prins with all neccessary accuracy. ... * * is a principle on which courts of equity constantly act by taking cogni.zance of matters which, though cognizable by courts of law. are yet so in,,"ohell a complex account thatit cannQt proper:)' be taken at law.",
GAINES
V.
CITY OF
NEW
ORLEANS.
In Corporation of Carlisle Wils'on, ]3 Ves.Jr:278 , the lord cliancellar says: .. The principles upon which conrt's of equity originally entertained suits for; an account when a party had a legal title, is that, though he might support asuit at law, a court of law either cannot give a remedy, or cam:.ot give so' complete a remedy as a court of eqt.:ty." . ' In Weymouth v. Boyer, 1 Ves. Jr. '424, Ur. Justice BULLER, sitting for the chancellor, (Lord THURLGW,) says: "'Ve have the authority of Lord HAHDWI'JKE that if a case was doubtful, . or the 1'emedy at law diffic1;lt, he woulel not p,ollounce against the equity jurisdiction. '':he same principle has been laid down by Lord BATHURST." In Fou:le 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: law must be as practicable and eftlcacious to the ends of justice and its prompt administration to exclude." In lIfitchell v. G1·eat Works ilfanllJ'g Co. 2 Story, 653, Justice STORY, overruling a demurrer to a bill for an account, rmys: "Oonsidering 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 cont 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' gratuitolls, unsupported either npon principle or authority. It has been overlooked by them that courts of equity have conCl:.:rent 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." Oomyn, Dig. "Ohancery 2 A 1." "But not till possession has been recovered, as trespass will not lie at law for them till then." Oomyn, Dig. "Ohancery 2 A 2." "Equity will decree an account of rents anci profits whenever' the aeeountis 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 ad"erse and conflicting claims." Hole. Eq. 85. See, also, 1 :Mad. Oh. 868; Oooper, Eq. PI. 134; Ludlvw v. Simvnd, 20aines' Oas.. 40, per J.; Knotts v. Tan-cr, 8 Ala. 743; Mitchell, 17 Ga. 558. :, Fl:om an early date equity decreed an accouIit of· mesne profits i -:-.-hen there were particular circum:lla...lces which' involve -an' equity ., It Is not enough that a court of law also has jnrisdiction; the remedy at
20
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. margo 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 eq nity. Cltrtis V. 2 Brown, eh. 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 effods, persisted in mala fide, h,ts 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. Wal'1"Im, {) Ves. 73, would give jurisdiction. But there is another distinct ground of equity jurisrliction here. The complainant has recovered judgment against several hundred actual tenants for rents and profits for varying of this long period. The5e tenltllts are insolvent. The defendant in this action is the warrantor of all those tenants, and wlJatever they owe the complainant the defendant owes to them. The defendant is not only a warrantor, but she is a warrantor who has enriched berself by purchasing in bad faith the complainant's property and selLng it at a profit of $500,OUO. 'fhis sum she has retained, and has had the use of since the year 1837. The complainant has no remeJy at law upon this warranty from want of privity. Equity, therefore, gives her a right of action. 'fhis case is, in principle, tho case of Riddle V. lIIandeville, 5 Cranch, 322, where "an indorser of a prom:ssory 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 eq uity against him, on the ground that the defendant, as the origir'tl indorser af 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 lesw)r 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 1111'. Story is that the under-tenant should not be permitted to enjoy the profits of pos;,ession without acconnting to the original lessor, because, if the original lessee had paid, he would have had a rewedy over against the under-tenant. It is but another application of the well-settled principle recognized in the familiar case put t,., Chief Justice MARSHALL, Id. 5 Cranch, 330, of a right of action by a creditor of an estate against tue legatees of his debtor. "If," says Chief Justice MARSHALL, "doubtg of his right to sue in chancery could be entertained while the executor was solv-
GAINES V. CITY OF NEW ORLEANS
21
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 ultimate;y responsible for his debt, equity will make them immediately responsible. '1'he principle here to be invoked, and which is controlling, is that eCJu1\y will not allow a party ultimately liable, for his own advantage, to keep the OWlier out of possession, and an intermediate and insolvGut pa-:rty in possession, who is, in turn, responsible to the lawful owner, and thru:eby to enrich himself out of the property uf that owner, thus possessed, and escape liability to him for want of a mode of action. TlJis principle 'is laid down ':1.1 broader terms by Lord Justice TunKER in the case of the Emperor of Austria v. Day If Kossuth, 3 De G., F. & J. (64: Eng. Gh.) 217, thus: "'.rhe highest authority upon the jurisdiction of this court, In enumerating the cases to which the jurisJiction of this cuurt extends, mentiuns cases of this class where the principles of law by which the onlinary cuurts are gnided no right. but upon of universal justice the jnuicial puwer is and the positive law is silent."
The conclusion, therefore, is unavoidable that tbis suit is properly brought as a suit in equity: (1) Because, as a bill for d:scovery 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 proSts for that whole period, as to a vast number of separate lots, and calling for a distinct and detailed statement of for each lot, under a system of law by which, on the one hand, the annual profit.:! or value for use, and on the other hand the yearly disbursement3 for ameliorations and taxes, must l'e ascertained and stated, and where it is made to appear that this exhaustive complexity is altogether due to the.hinlimnces which have been interposed by the defendant; or whether the biIl of complaint be viewed as leveled at a defendant who, under an obligation to indemnify a possessor in case of eviction.' and fur the purpose of retaining an enormous price unjustly obtamed, and avoiding a liability for fruits which must be rendered to the real owner upon her recovery of possession, has, direct y as well as through that fJQssessor, by all manner of legal artifices, in bad faitb, 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 witll its fruits,-whetLer the bill of
22
. FEDERAL REPORTER.
complaint is viewed with reference to eit,her of the distinct grounds which it presents for equitable jurisdiction,-a fortiori, if it be viewed with reference to all,-it states a case over which a court of equity has undoubted cognizance. As to the cause upon the bIll, amended bill, answer, pleas, and proofs. The averments of the bill which it is necessary to consider are as follo\vs: That the complainant was the legitimate daughter of Daniel Clark, and by his last will and testament (will of 1813) became his universal legatee and inherited the property known as the Blanc tract, which is set out in the bill by metes and bounds; that in the year 1834 the First Municipality, a corporation whose property and liabilities were, by the amended charters, transmitted to the present city of New Orleans, fraudulently obtained possession under a pretended title of the said Blanc tract, and in the year 1837 divided it into squares and lots, and for a price exceeding $400,000 conveyed it to a multiplicity of grantees, who, by mesne conveyances, granted in parcels and subdivisions said tract to tenants, who, as well as the original and intermediate grantees, took in bad faith. The bill further avers an eviction and recovery by the complainant against these tenants for the entire tract, and for fruits for portions of the time of disseizin; their insolvency; that the defendant is a warrantor of all said tenants; was notified, and, in fact, made the de. fenses in the suits terminating in the judgments for eviction and for fruits; that a sevarate suit for a portion of this tract was commenced and maintained against the defendant, in which all of the facts and propositions of law relating to complainant's title and the liability and wrong-doing of the defendant were judicially determined; that, in spite of the requests of the tenants to surrender to the complain. ant, the defendant compelled them by threats to allow her to continue the defenses; that, as a final resort, when the rights of the complainant had been, after 35 years of litigation, fully established by the probate of the spoliated will of Daniel Clark, by the supreme court of this state, and by the complete establishment of the rights of the complainant to this property, as against the defendant, by decrees between ·these parties by the supreme court of the United States. the defendant, in the year 1867, caused a suit to be insti- . tuted, for the pretended purpose of revoking the probate of the will of Daniel Clark, and thereby delayed and hindered the complainant's recovery for a further period of 10 years; that all -this delay and; hindrance has been caused by the defendant alone for the purpose of enriching herself by thereby saving herself from her ultimate liability upon her warranty for the return of the price and for fruits and revenues; and upon these averments the complainant demands judgment against the defendant for the rents which were received, ' and which ought to have been received, and which the complainant.' would have received. but' for the alleged long-continued and enormous \Yrong of the defendant.
G_UNES V. CITY OF NEW ORLEANS.
23
The defenses contained in the answer of the dereil,iant are, in substance, a denial of the bill, us well as (1) plea of prescription of one, two, and three Jears; (2) good faith of the defendant; (3) reduction of amount alleged by the bill to have been received for the property at public auction; (4) collusion in the case of Gaines v. Hennen; (5) denial of insolvency of the tenants; (6) plea that the judgment in the case of Gaincs v. City oj New Orleans is such an adjudication as precludes complainant from bringing this suit; and (7) irregular and fraudulent character of some of the judgments in the Agnelly and Monsseaux, i. e. the possessory, suits. r will consider these defenses se1'iatim: (1) Proscription. This is a suit which, according ;;0 all authorities, both under the common law and the law of Louisian:::" could not have been brought until the complainant had recovered possession. Gaincs v. City oj New Orleans, 15 Wall. 633. Her judgments in the Agnelly and l\Ionsseaux cases, wherein she recovered judgment for possession and for partial fruits, were rendered l\IaY'7, 1877, and therefore did not become final uutil May 3, 1879. This present sP.it was filed August 7 i 1879. All ground, even: for discussion as to prescription, is wanting. . Good faith of the defendant. This issue has been absolutely and tinnIly settled adversely to the city of New. Orleans, in Gaines v. City of New Orleans, 6 '\Vall. 642, and 15 WalL 633. (3) As to the amount of price received from the sale of the mane tract at the public auction in 1837. The report of the master and the adjudication shows the aggregate amount derived from this sale to have been $482,525, besides $86,405, the amount of price of adjudication of certain lots ·for which no evidence of deeds of sale appears. Master's Report, p. 24. (4) As to any alleged collusion hetween the parties in the case of Gailic8 v. Hennen, there is not a scintilla of evidence in the record in support of this averment; and it becomes of little moment except as bearing upon the question of good faith of the· defendant. This has, as has 'beenobserved before, been settled, and is no longer an oJ,Jen question. (5) The matter ofthe insolvency ofthe tenants appears by the testimony of Florville Fay aild Jules Vienne. (6) Plea that the judgment in the case of Gaines v. City of New Orleans is Buch an adjudication as precludes the complainant from bringing this suit. The suit· here referred to is known in this record as suit No. 2,695. It was an ejectment suit, conducted on the equity side of this court as a suit in part for discovery. It was filed originally with reference to the whole Blanc tract. The defendant's answer contained a disclaimer as to any title or possession of the tract except that square upon which was situated the draining machine anel some other small pieces, The answer disclosed the names of the occupants who were alleged to be in possession of the rest of the tract.
24
FEDERAL RErORTER.
Upon the coming in of defendant's disclaimer the complainant took no further proceedings as to the portion of the tract covered by it, and the cause proceeded and the judgment was with reference to the portion as to which possession was not disclaimed. There was no judgment upon the disclaimer. In fact no issue was joined upon it. The judgment has precisely the same scope and effect as if the bill, as originally filed, had sought a discovery and recovery of property and fruits us to the square occupied !ly the drainage machine alone, and the other squares not included in the disclaimer. Indeed, after the disclaimer it became necessary that the possessory actions against the occupants should be commenced and terminated before this present action would lie. An exception was made after the cause had come back from the supreme court and was before the court upon the master's report, which presented the question whether the complainant could treat the city as a trustee for the price received by her for the Blanc tract. Tlle question was solved by the court declaring that in an ejectment bill against a party holding by an adverse title there could be 110 trust raised np as to the price received, in case of sale of a portion; i. e., that the whole aim of the bill was inconsistent with the claim thus urged by the exception. This ruling and decree can by no construction be made to be ad verse to, or even relate to, the claim presented here. This claim is not only not inconsistent with the ejectment suit, but follows and could ouly follow as a consequence from that suit and the recovery in the possessory suits. The revenues upon which the master has reported are those derived or derIVable from lands not included in the suit No. 2.695. after the disclaimer and not em!lraced in the judgment. (7) That some of the judgments against the tenants (in the Agnelly and Monsseaux snits) were irreciular amI fraudulent. The evidence which seems to be relied upon is that in some of the instances, in judgments pro were entered, the subpamas are not in the records. This by no means overcomes the prima facie case made by the judgment itself, as it cannot be presumed the court wonld have rendered it without proof of service of prucess. I do not find that the special defenses are in any respect sustained. The exceptions to tile report of tht' master are for the most part treated and disp03ed of in the sllb,;eqnent portlOns of the opinion. As to those not there discussed which have !leen filed by the defendant: (1) As to the order of reference. I take it. it is not to be disputed that the conrt may order a reference of any part of an equity cause, whenever, in its opinion, the entlH of justice require it, and the matter referred can be considered by tile master consistently with the rules of pleading and evidence. This order was made by the couro in anticipation of the long time necessary to take and state this intricate and prolonged account, and with the purpose of putting into force the condition and stipulation upon which the judgment
GAINES V. CITY OF NEW ORLEANS.
25
against the defendant, taken pro had been vacated, viz.: To speed a cause which sought to enforce a right to an inheritance, the contest as to which had been prolouged far beyond two average human lives, and with respect to which the controlling principles had been settled never to be shaken. The thing as to which the account was directed to be taken was specifically defined, and the rules upon which it was to be taken were clearly set out in the order of reference. The only question worthy of any consideration, with reference to such an order, woulll be whether it was made at a point in the litigation, when a reference of the matter committed to the master could be had without prejudice to the rights of the litigants. The demurrer to the whole bill had been overruled, after a very full argument, and the court had announced its opinion to the effect that that portion of the bill, and that alone, was good by which the complainant sought to recover from the defendant the rents which she might and would have derived from that part of the Blanc tract from which she had been kept out of possession by the devices of the defendant, through her warrantees who occupied. Leave, accordingly, was given to the defendant to still demur to the rest of the bill, and a reference was directed to ascertain the rents and profits which the complainant would have ,derived had she been allowed to remain in undisturbed possession. See Decree, March 27, 1880. This inquiry was just as capable of being conducted at that point in the progress of the cause as after a decree upon the evidence. The complainant, in acting upon the order, incurred the risk of the costs of the reference, in case she should obtain no decree upon the evidence when the cause should have been finally submitted. The defendant was in no respect prejudiced, and was deprived of nothing but the opportunity for causing still further delay. (2) As to the exception that the master has not reported upon certain questions. Nothing was referred to him except to take and state the account of rents and profits as to the tract of land known as the Blanc traet,-both those realized and those which might have been acquired with ordinary good management. (3) As to the exception that, in some respects, the master has not correctly located the tract. The court finds that the location adopted by the master is confirmed by the contemporaneous maps offered as exhibits in this cause. (4) As to the exception that the master has carried on the charges for rent after the judgments of eviction. This exception is fouuded on a misapprehension. The master's report shows that he charges the defendant with rents only up to the date of eviction, nnder the Agnelly and :;\Ionsseaux judgments, although he has properly continued the allowance of interest upon the rent dues, or amounts of rents, till judgment. The other exceptions to the master's report on the part of defendant have been considered in the opinion and are overruled. As to the exception to the master's report on the part of the
26
FEDERAL REPORTER.
complainant, it is allowed to the extent and for the reasons set 70rth: in the opinion. The additional exception as to the property con-' veyedto McDonogh, and by him bequeathed to the city of Baltimore, is also founded on a misapprehension. 'l'he account if> brought down only to 1848, the date of the conveyance from the defendaut to McDonogh. The question remains whether the complainant has 'substantiated her bill, and, by the proofs, made such a case as to entitle her to a recovery. The complainant's title-that is, her capacity to take; her heirship; her legitimacy; the will, and her right to inherit under it; the entry into possession of this Blanc tract by the defendant; that the defendant in bad faith took her title and sold the property and received the price, and in all her relations to said property is to be deemed a person dealing in bad faith; that complainant has not renonnced her title; and the legal identity of the First Municipality and the city of New Orleans, the defendant,-all these facts and issues have been settled beyond question by the supreme conrt of the United States by a solemn judgment between these parties. See record' in suit, Gaines v. City of New Orleans, No. 2695 of docket of this court, and the case as reported, 6 Wall. 716 and 15 Wall. u24. Under the civil law and the textual provisions of our Code, the seller, even in good faith, in case of eviction, is bound (1) for a restitution of the price; (2) for a restitution of all fruits and revenues, which the vendee is obliged to restore to the owner; (3) for the costs; and (4) for all damages which the vendor has suffered; besides the' price paid. Civil Code, arts. 2506,2507, 2510; Morris v. Abat, 9' La. 557; and Downes v. Scott, 3 La. Ann. 278. The possessor in bad faith is bound to surrender the thing immediately, and the .seller and warrantor, who took and conveyed in bad faith, is bound forthwith to restore the price to his vendee and to acquit, i. e., discharge, for him his liability to the owner without' suit or condemnation. He is in law a usurper, and liable for his successors. Pothier, Cont. of Sale, No. 127. The complainant's title being incontrovertibly established, as well as the mala fides of the defendant, the simple inquiry is, in what manner and to what extent did the defendeut delay or hinder restitution? for any delay, much more, any hindrance, was a fault. The testimony shows: That in 1836 this complainant firs\, commenced her judicial demands against the First :Municipality, in whose place the defendant stands, for this property; that six times she has been compelled to go before the supreme court of the United States, upon an appeal or writ of error, in the prosecution of her efforts to obtain restitution, mediately or immediately, from the defendant; that. prior to the year 1855, that tribunal could 'give no relief, though intimating that they were impressed with the of her cause, because she claimed property sitnated in the state of Louisiana, under a will not probated in that state, aIllI from a testator whose will was declared by the prolJate conrts of that state to be :l l1ifTerent instrnment. and one which excluded the
GAINES v,'CI'rY'OFiNEW· ORLEANS.
'2.7
complainant;' tluit thereupon, in 1855, complainant succeeded in obtaining the recognition of the genuine last will and testament of her father from the proper tribunal of thi:> state, and in 1860 her right to inherit and recover under that will was authoritatively admitted and decreed by the supreme court of the United State3, in case d Gaines v. Hennen, 24 How. 615; that, in that case, not only was every point estalJli:>hed which was material or re'luisite to entitle the complainant to vindicate her title to this entiro tract of land, and to recover against this defendant,but the court emphasized its decision by the expression of the hope that opposition to rights so clear and, even then, so unduly resisted, wouiji thereafter cease; that this defendant, nevertheless. continued her opposition by a defense to the suit of tho complainant against the defendant, in which cause, in 1866, the propositions of law, and the conclusions as to the facts upon which the CaiSe of Hennen had bl'en decided, were reiterated by the United States supreme comt with this severe rebuke to the llefendant: .. It was supposed after the decision in Gaines v. Hennen that the litigation, which had been conducted in one form or another for over 30 years lJy the complainant to vindicate her rights in the estate of her father, was eUded; but this reasonable expectation has not been realized, for other causes, involving the same issue;; and pleadings, and upon the same evidence, are now pending before this court." See Gaines v. ,City of New Orleans. G Wall. 716. That the defendant, in the year 1867, joined in the institution and prosecution of a suit known as the Fuentes suit. in which it was attempted to revoke the decree by which the will of 1813, upon whieh the complainant's rights rested, had been probated; that upon the suggestion by the defendant of the pendeney of this Fueutes suit, the circuit court of the United States for this district ordered a stay of proceeding:> in the causes known as the "Agnelly and Monsseaux cases," which had been brought in that court by the complainant against several hundred of actual tenants of this Blanc tract, who were intermediate warrantee:> of the defendant, to recover possession and fruits; that these possessory suits were thus made to pause till the final decree in the Fuentes case, wherelJy, in )1ay, 1877, the prayer to revoke the probate of the will of 1813 was rejected; that the :Fuentes suit, of itself, hindered the complainant in olJtaining restitiItiou 8 or 10 years; t!lllt, shortly after the decision of the supreme court of the United States in Guines v. Cit!} of New Orleans, numerous parties, tenants upon this Diane tract, under titles emanating from the defendaut, united in a petition addressed to her, in substance, a,Jking that the defeu(lant should acquiesce in the demand of the complainant as the rightful o\\Oner, make restitution, and end a 'useless and already decided contest; hut that the defendant refusetl to comply with this petition; and, through her counsel and attorney, entered upon and virtually conlluded the defense against the demand of the complainant for possession and for the fruits of this tract, penlling in the Aguelly and )Ionsseaux cases; that complainant, in .May, 1877, recovered jUdgments for posse3sion and for partial rents for portions .of the time of her dispossession, which judgments, there being no appeal, became final in )1ay, 1879; that the insolvency of the tenants in the Agnelly and case is estaulisheJ, and that the former holders of titles derived from the defendant, former occupiers of this tract, are either insol vent '01' dead, without repre3entation. or cannot be found; that in An!!ust, 1879, ·this snit was commenced; that the answer of the defel1llant herein, among ather defenses, denies all title on the part of the complainant to the Blanc trad; demes that the' will of Daniel Clark, of 1813, is valid or operative, and the capacity 'of the complainant to lake under it, and her avers the 'complete good faith of the defendant; in short, with a temedty amounting to haruihood, presents and urge:>, as if new and undecided, all the issues which ,had. been for s(} man v veal'S controverted between the complainant and. defenrh\nt, and w!rich wei'e decidell auversely to Ule defendant hJ the 3tlprell1e o
28
court of the United States in 1860, emphatically reaffirmed adversely to the defendant in her own case in 1867, and decided and practically enforced arrainst the numerotB defendants lJy final judgments in the Agnelly and Monscases, who were all warranties of the defen(lant, who had notice and defended, which, by operation of law, rendered tl1ese last decrees also jUdgments against the defendant herself.
This recital, which is but a summarization of the proceedings and adjudications disclosed by the records in the various causes which constitute the litigation between these parties,-this ".mabating and defiant resistance to rights decreed from the beginning to have been known, and thus solemnly and frequently declared,-abundantly establishes that from the year 1837 to the year 1879 the defendant, with her large resources and power, by unconscionable proceedings, has kept the complainant from the possession of this property, with no conceivable object save the exhaustion of complainant and the consequent retention, as against the defendant's vendees, of the $500,ouo which the defendant had in the year 18H7 received for this property, and the evasion of her just liability for fruits. That this is a fault of an ag({ravated character, the perpetration of which has been persisted in beyond all precedent, cannot be doubted. Civil Code, arts. 2315, 2324; Irish v. Wright, 8 Rob. 428, 432; Smith v. Berwick, 12 Rob. 20, 25. That this wrong has been ilommitted under the guise of judicial proceedings cannot exempt from liability. He who, with a motive to deprive another of that which he knows is justly that other's, employs the process and machinery of the courts, is under obligation to satisfy all damages which that other thereby suffers. The damages springing from the legitimate exercise of legal rights, even when there is an absence of malice, and there is good faith, must at least consist in placing the injured party in the situation in which he would have been i( the disturbance had not taken place. Gray v. Lowe, 11 La. Ann. 392, 393; Sellick v. Kelly, 11 Rob. 150; Horn v. Bayard, 11 Rob. 263, 264; Moore v. Withcnburg, 13 La.. Ann. 22. The case of Dyke v. Walker, 5 La. Ann. 519, illustrates the extent to which damages are allowed for injury effected by litigation, for there plaintiffs were allowed compensation for being compelled to go to protest and for loss of credit. When a party makes use of judicial procedure in bad faith, he is subjected to a peculiar and severer rule in the assessment of damages. The liability of a corporation, municipal or other, for the wrongful and injurious acts of its officers and agents when acting within the scope of their authority, or when the corporation has ratified their acts, is, uncler the law of Louisiana, settled. McGary v. Oity of Lajayette, 12 Rob. 668; S. C. 4 La. Ann. 440; Rubassa v. Navigation Co. 5 La. 403,464; Wilde v. City of New Orleans, 12 La. Ann. 15; Jl.nd Gaines v. City of New Orleans, 6 Wall. 716. Nor does it diminish the liability of the defendant that she has, in
2D
SOme instances, conducted and urged these defenses in the capacity of warrantor. 1' he warrantor is, by the settled jurisprudence of this state, the real defendant. Millaudon v. McDonough, 18 La. 108, and cases there cited. The defendant had the right, which the evidence shows she exercised with a guilty knowledge, to assume the conduct of the Fuentes case and the defense of the Agnelly and Monsseaux: cases, as well as with the same knowledge to procrastinate the acces· sion of the complainant to her estate by the defense of causes where she was the sole party defendant; but, by so doing, she incurred the liability which rests upon all parties who employ legal process and effect legal hindrance in bad faith, and again8t whut are ultimately declared to be rights of others, and to their damage; she must make full reparation. ------The case of Chirae v. Reinicker, 11 Wheat. 280, is in point, and illustrates the ground of the defendant's liability. In that case, in an ejectment suit, there had been a recovery of possession against a tenant, and a party, other than the defendant in the reported case, had, with the consent of the plaintiff, been admitted to defend as landlord. The court held that, notwithstanding this, if the defendant had derived profit, and had aided in resisting the title of the plaintiff and his recovery of possession by employing counsel and defending the suit, he also was liable for mesne profits. "An actual occupation of the premises by the defendants, during the period for which damages are claimed, is unnecessary; it is sufficient if he was interested in and derived profits from the premises during that period." Adams, Eject. margo p. 383. The question as to the amount of damages is twofold, resulting from the double character in which the defendant is liable. If we view the complainant as simply substituted in equity to the rights which the vendees, warrantees, would have had, the amount to be recovered would be determined by what had been recovered in the Agnelly and Monsseaux cases. The evidence shows the defendant was called in warranty in some of those cases, and was notified in all; that she took upon herself the defense, and through her attorney conducted it. 'The judgment is binding upon the warrantor if he has been called in warranty, or he is apprised of suit having been brought. Civil Code, arts. 2517, 2518, 251D; Code of Practice, a:ots. 388, 714. The cases of Vienne v. Harris, 14 La. Ann. 382, and Late v. Armorer, ld. b26, establish that judgment against the vendee is, prima facie, sufficient to authorize jUdgment against vendor and warrantor, and that when the latter has had notice, though he did not appear, the judgment is conclusive against him. See, also, .Jolm.son v. Weld, 8 La. Ann, 129, and Williams v. Leblanc, 14 La. Ann. 757. The records in the Agnelly and 1Uonsseaux cases were not only properly introduced as evidence in this case, even without the verification afresh by the witnesses .of their testimony, which was also had,
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, but th13 defentlant, having had notice,and having appe:1recl; is concluded by the judg,ut:Jnts therein relldered Loth as to tUe eviction aud 'as to the fruits. As to the rule to be followed in ascerbining the, rents and profits, , the court, in the order of reference, directed the master to take account, not only of the rents, revenues, and values for use actually received, but also of those which the evidence showed would have , been received with ordinary good management. In the Agnelly and Monsseaux causes, in response to a request of the masters for instructions upon this point, the court ruled as follows: "The defendants therefore must, in accordance with the very textual pro, visions of the law, restore all products of the property which they have poso sessed. They are also liable for the products which they ought to have realized with ordinary goorl management. The possessor in bad faith is not · held to the highest possible degree of skill and care, but he must have administered as a prUdent master of a family. Winter v. Zacltarie, 6 Robinson, 467. This was a cause in which the defendant had wrongfully possessed a plantation, and he was adjndged not only liable for the fruits which he received, but those which heeould have received with ordinary husbandry; and the doctrine is laid down in express terms that the possessor in bad faith must not " only restore the fruits received, but also those fruits which, with ordinary , good management, he ought to have received. That case was determined in the first instance after a thorough argument, and an elaborate opinion was written. Upon a rehearing the court reiterated their view, and it is the settled law of Louisiana down to the present time. "This question has been raised in the reports of both masters, whether the principles already enunciated apply to all lands, improved and unimproved. They apply to all lands unimproved as well as improved. Tile complainant is not entitled to a recovery for the revenues which might, by the remotest possibility, have been received by the possessor; on the other hand, she is entitled to all income, revennes, profits, and value'for use or occupation which the evidence establishes she, as owner, would have received or derived whether the possessor has realized them or not, and whether the failure on his part to realize them resulted from his not managing the estate with ordinary prudence, or from the estate remaining unproducti ve by reason of the title thereto being in dispute on acclmnt of a claim of title Oil the part of the possessor, now adjUdged to have been unfounded."
This is the doctrine distinctly laid down by Mr. Justice BRADLEY in Gaines v. Lizardi and Gaines v. New Orleans, 1 Woods, 105. This is the settled rule of the civil law-The Partic1as, (Moreau & Carlton's Ed.) vol. 2, p. 1109, tit. 14, law 4: "If the possessor held in bad faith and was evicted, he would have been obliged to deliver , up the estate, together with all the fruits he had gathered frum it, ,those which he had consumed, and even the rents and fruits which , he might have gathered from the estate had he cultivated it, in as, much as he had no right to possess it and has acted in bad faith." Precisely this principle was laid down by the circuit court of the "United States, for the district of Arkansas in Beebe v. Russell, 19 How. 285, which was an action for fraudulently withholding real es,tate, and for rents and profits: According to the statement of the . supreme court in their opinion, wherein they assign their reasons for