§ 799. In the present state of the authorities, involving, as they certainly do, some conflict of opinion, it is not possible to affirm more than that the jurisdiction for compensation or damages does not ordinarily attach in equity, except as ancillary to a specific performance, or to some other relief. If it does attach in any other cases, it must be under very special circumstances, and upon peculiar equities, as, for instance, in cases of fraud or in cases where the party has disabled himself, by matters ex post facto, from a specific performance, or in cases where there is no adequate remedy at law.2

§ 799 a. The cases, however, which we have been thus far considering are cases where the party sought relief in equity as a plaintiff, and not where compensation was ordinarily sought by the defendant, in resistance or modification of the plaintiff's claim. In these latter cases, the maxim often prevails, that he who seeks equity shall do equity. Thus, for example, if a plaintiff in equity seeks the aid of the court to enforce his title against an innocent person, who has made improvements on land, supposing himself to be the absolute owner, that aid will be given to him only upon the terms that he shall make due compensation to such innocent person, to the extent of the benefits which will be received from those improvements. In such a case, if the plaintiff has fraudulently concealed his title, and has thereby misled the defendant, the title to this compensation is founded in the highest justice.3 But, independently of any such fraud, if the plaintiff seeks from an innocent person an account of the rents and profits of an estate, on which the latter has made improvements, without any notice of any defect of his title, a court of equity, in decreeing an account, will allow him to deduct or recoup therefrom a due compensation for his improvements. So, in cases of partition be

decreed by way of compensation. See also Forrest v. Elwes, 4 Ves. 497. Lord Hardwicke, in City of London v. Nash, 3 Atk. 512, 517, refused a specific performance, but he awarded an issue of quantum damnificatus.

1

1 [This opinion of the learned author was expressly approved in the late case of Andrews v. Brown, 3 Cush. 135.]

2 See Cud v. Rutter, 1 P. Will. 570, and Mr. Cox's note (3); Greenaway v. Adams, 12 Ves. 395; Hedges v. Everard, 1 Eq. Abr. 18, pl. 7; Errington v. Aynesly, 2 Bro. Ch. 341; Deane v. Izard, 1 Vern. 159; Gwillim v. Stone, 14 Ves. 129; Todd v. Gee, 17 Ves. 273.

3 Ante, § 385, 388, 389. See also § 655; post, § 1237, 1238.

• Putnam v. Ritchie, 6 Paige, 390, 405, 406; Green v. Biddle, 8 Wheat. 1.

tween tenants in common, compensation is often allowed in equity to one of the tenants in common, who has made valuable improvements thereon.1

§ 799 b. It has been sometimes 'thought, as a matter of justice, that courts ought to go farther, and, in favor of a bona fide possessor of the land, whose title is defective, to decree compensation for the improvements made by him upon the land, in good faith, against the true owner, who asserts his title to it. The civil law seems to have adopted this broad doctrine, where the improvements were made by a bona fide possessor without notice of any adverse title. "Certe illud constat ; si, in possessione constituto ædificatore, soli Dominus petat domum suam esse, nec solvat pretium materiæ et mercedes fabrorum, posse eum per exceptionem doli mali repelli; utique si bonæ fidei possessor fuerit, qui ædificavit."2 And this also appears to be the rule of countries deriving their jurisprudence from the civil law. But courts of equity seem not to have gone to this extent: but to have confined themselves simply to the administration of the equity, in cases where their aid has been invoked by the true owner in support of his equitable claims. They have never enforced, in a direct suit by the bona fide possessor, his claim to meliorations of the property, from which he has been evicted by the true owner.4

1 Ante, § 655; Coulter's case, 5 Co. 30; Green v. Biddle, 8 Wheat. 1, 79 to 82; Southall v. McKean, 1 Wash. (Virg.) 434.

2 Just. Inst. Lib. 2, tit. 1, § 30, 35; Dig. Lib.-6, tit. 1, 1. 38, 48; Pothier, Pand. Lib. 6, tit. 1, n. 44; post, § 1239; Bright v. Boyd, 1 Story, 478, 494, 495.

3 Merlin, Répertoire; Amelioration; id. Possession, § 5; Cod. Civ. de France, art. 555, 1381, 1634, 1635; 1 Domat, B. 3, tit. 1, § 5, art. 7; id. tit. 7, § 3, art. 5, 6; post, § 1239, and the authorities cited in Putnam v. Ritchie, 6 Paige, 403, 404.

Putnam v. Ritchie, 6 Paige, 390, 403, 404, 405. In this case, Mr. Chancellor Walworth said: "This principle of natural equity is constantly acted upon in this court, where the legal title is in one person, who has made the improvements in good faith, and where the equitable title is in another, who is obliged to resort to this court for relief. The court, in such cases, acts upon the principle that the party who comes here as a complainant, to ask equity, must himself be willing to do what is equitable. I have not, however, been able to find any case, either in this country or in England, wherein the Court of Chancery has assumed jurisdiction to give relief to a complainant, who has made improvements upon land, the legal title to which was in the defendant, where there has been neither fraud nor acquiescence on the part of the latter, after he had knowledge of his legal rights. I do not, therefore, feel myself authorized to introduce a new principle into the law of this court, without the sanction of the legislature, which prin

ciple, in its application to future cases, might be productive of more injury than benefit. If it is desirable that such a principle should be introduced into the law of this State for the purpose of giving the bonâ fide possessor a lien upon the legal title for the beneficial improvements he has made, it would probably be much better to give him a remedy by action at law, where both parties could have the benefit of a trial by jury, than to embarrass the title to real estate with the expense and delay of a protracted chancery in all such cases." Post, § 1237, 1238. On the other hand, Mr. Justice Story, in delivering the opinion of the court, in Bright v. Boyd (1 Story, 478, 494), said: "The other question, as to the right of the purchaser bonâ fide, and for a valuable consideration, to compensation for permanent improvements made upon the estate, which have greatly enhanced its value under a title which turns out defective, he having no notice of the defect, is one upon which, looking to the authorities, I should be inclined to pause. Upon the general principles of courts of equity, acting ex æquo et bono, I own that there does not seem to me any just ground to doubt that compensation, under such circumstances, ought to be allowed to the full amount of the enhanced value, upon the maxim of the common law, Nemo debet locupletari ex alterius incommodo; or, as it is still more exactly expressed in the Digest, Jure naturæ æquum est, neminem cum alterius detrimento et injuria fieri locupletiorem. Dig. Lib. 50, tit. 17, 1. 206. I am aware that the doctrine has not as yet been carried to such an extent in our courts of equity. In cases where the true owner of an estate, after a recovery thereof at law, from a bonâ fide possessor for a valuable consideration without notice, seeks an account in equity, as plaintiff, against such possessor, for the rents and profits, it is the constant habit of courts of equity to allow such possessor (as defendant) to deduct therefrom the full amount of all the meliorations and improvements which he has beneficially made upon the estate and thus to recoup them from the rents and profits. Ante, § 799 a, 799 b; post, § 1237, 1238, 1239; Green v. Biddle, 8 Wheaton, 77, 78, 79, 80, 81. So, if the true owner of an estate holds only an equitable title thereto, and seeks the aid of a court of equity to enforce that title, the court will administer that aid only upon the terms of making compensation to such bonâ fide possessor for the amount of his meliorations and improvements of the estate, beneficial to the true Ante, § 799 b, and note; post, § 1237, 1238. In each of these cases the court acts upon an old and established maxim in its jurisprudence, that he who seeks equity must do equity. Post, § 1237, 1238. But it has been supposed that courts of equity do not, and ought not, to go farther, and to grant active relief in favor of such a bonâ fide possessor, making permanent meliorations and improvements, by sustaining a bill brought by him therefor, against the true owner, after he has recovered the premises at law. I find that Mr. Chancellor Walworth, in Putnam v. Ritchie (6 Paige, 390, 403, 404, 405), entertained this opinion, admitting at the same time, that he could find no case in England or America where the point had been expressed or decided either way. Now, if there be no authority against the doctrine, I confess, that I should be most reluctant to be the first judge to lead to such a decision. It appears to me, speaking with all deference to other opinions, that the denial of all compensation to such bonâ fide purchaser, in such a case, where he has manifestly added to the permanent value of an estate by his meliorations and improvements, without the slightest suspicion of any infirmity in his own title, is contrary to the first principles of equity. Take the

owner.

case of a vacant lot in a city, where a bonâ fide purchaser builds a house thereon, enhancing the value of the estate to ten times the original value of the land, under a title apparently perfect and complete: is it reasonable or just, that, in such a case, the true owner should recover and possess the whole without any compensation whatever to the bona fide purchaser? To me it seems manifestly unjust and inequitable thus to appropriate to one man the property and money of another, who is in no default. The argument, I am aware, is, that the moment the house is built, it belongs to the owner of the land by mere operation of law, and that he may certainly possess and enjoy his own. But this is merely stating the technical rule of law, by which the true owner seeks to hold what, in a just sense, he never had the slightest title to; that is, the house. It is not answering the objection, but merely and dryly stating that the law so holds. But, then, admitting this to be so, does it not furnish a strong ground why equity should interpose and grant relief? I have ventured to suggest, that the claim of the bond fide purchaser, under such circumstances, is founded in equity. I think it founded in the highest equity; and in this view of the matter I am supported by the positive dictates of the Roman law. The passage already cited shows it to be founded in the clearest natural equity. Jure naturæ æquum est. And the Roman law treats the claim of the true owner, without making any compensation under such circumstances, as a case of fraud or ill faith. Certe (say the Institutes) illud constat; si, in possessione constituto ædificatore, soli Dominus petat domum suam esse, nec solvat pretium materiæ et mercedes fabrorum; posse eum per exceptionem doli mali repelli; utique si bonæ fidei possessor, qui ædificavit. Nam scienti, alienum solum esse, potest objici culpa, quod ædificaverit temerè in eo solo, quod intelligebat alienum esse. Just. Inst. lib. 2, tit. 1, § 30, 32; ante, § 799 b; Vin. Com. ad Inst. lib. 2, tit. 1, § 30, n. 3, 4, p. 194, 195. It is a grave mistake, sometimes made, that the Roman law merely confined its equity or remedial justice, on this subject, to a mere reduction from the amount of the rents and profits of the land. See Green v. Biddle, 8 Wheat. 79, 80. The general doctrine is fully expounded and supported in the Digest, where it is applied, not to all expenditures upon the estate, but to such expenditures only as have enhanced the value of the estate (quatenus pretiosior res facta est), Dig. lib. 20, tit. 1, 1. 29, § 2; Dig. lib. 6, tit. 1, l. 65; id. 1. 38; Pothier, Pand. lib. 6, tit. 1, n. 43, 44, 45, 46, 48, and beyond what he has been reimbursed by the rents and profits. Dig. lib. 6, tit. 1, 1. 48. The like principle has been adopted into the law of the modern nations, which have derived their jurisprudence from the Roman law; and it is especially recognized in France, and enforced by Pothier, with his accustomed strong sense of equity, and general justice, and urgent reasoning. Pothier de la Propriété, n. 343 to 353; Code Civil of France, art. 552 to 555. Indeed, some jurists, and among them Cujacius, insist, contrary to the Roman law, that even a malá fide possessor ought to have an allowance of all expenses which have enhanced the value of the estate, so far as the increased value exists. Pothier de la Propriété, n. 350; Vinn. ad Inst. lib. 2, tit. 1, 1. 30, n. 4, p. 195. The law of Scotland has allowed the like recompense to bonâ fide possessors, making valuable and permanent improvements; and some of the jurists of that country have the benefit to malâ fide possessors to a limited extent. Bell, Comm. on Law of Scotland, p. 139, § 538; Ersk. Inst. b. 3, tit. 1, § 11; 1 Stair, Inst. b. 1, tit. 8, § 6. The law of Spain affords the like protection and recompense to

bonâ fide possessors, as founded in natural justice and equity. 1 Mor. & Carl. Partid. b. 3, tit. 28, 1. 41, p. 357, 358; Asa & Manuel, Inst. of Laws of Spain, 102. Grotius, Puffendorf, and Rutherforth, all affirm the same doctrine, as founded in the truest principles ex æquo et bono. Grotius, b. 2, ch. 10, § 1, 2, 3; Puffend. Law of Nat. & Nat. b. 4, ch. 7, § 61; Rutherf. Inst. b. 1, ch. 9, § 4, p. 7. There is still another broad principle of the Roman law, which is applicable to the present case. It is that where a bona fide possessor or purchaser of real estate pays money to discharge any existing encumbrance or charge upon the estate, having no notice of any infirmity in his title, he is entitled to be repaid the amount of such payment by the true owner, seeking to recover the estate from him. Dig. lib. 6, tit. 1, 1. 65; Pothier, Pand. lib. 6, tit. 1, 1. 43; Pothier de la Propriété, n. 343." See also s. c. 2 Story, 605, where the doctrine was again affirmed, and acted upon by the court.

CHAPTER XX.

INTERPLEADER.

[* § 800. Interpleader in equity.

801, 802. This proceeding existed at law, in cases of a joint bailment.

§ 803. And in cases of finding and some others.

§ 804, 805. This was only in actions of detinue and is now obsolete.

§ 806. The equitable remedy follows the analogy of that at law.

§ 807. Equity jurisdiction rests upon defect of legal remedy.

§ 808. It is enough if the party is exposed to conflicting claims.

§ 809. Plaintiff must make affidavit against collusion.

§ 810. Case where court ordered an account also.

§ 811. Cases of annuitants and tenants.

§ 812. Claims must be in privity with each other.

§ 813. But equity maintains more extensive jurisdiction than law.

§ 813 a. Liability to taxation in different towns.

§ 813 b, 813 c. Claims under policies of insurance, attachments, &c.

§ 814. Such bills brought by mere stake-holders.

§ 815-817. Independent titles cannot be settled by interpleader.

§ 817 a. The plaintiff may be an agent of one party.

§ 817 b. But in such case the other parties must claim under the title of his principal.

§ 818. Public agents may interplead independent claimants.

§ 819, 820. But a private holder cannot interplead independent titles.

§ 821. The bill must show two claims standing equal as to plaintiff.

§ 822. The case is disposed of in the court of equity.

§ 823. English statute on the subject.

§ 824. Bills in the nature of interpleader, more extensive remedy.

§ 824 a. Summary of recent decisions upon the subject.]