16 GAINES
FEDERAL REPORTER.
v.
CITY OF NEW OnLEAKS.
1
(Circuit Court, E. D. Louisiana. lIay 3, 1883.) 1. EQUITY JUnTSDICTTON.
A bill for a discovery lies, even when the action to be supported sounds in tort. In a suit for an accounting as to the rents and profits of real property for a pcriod of 45 which must Le takcn accordng to the laws of LOUlsiana, and wherein the dcfendant must be charged With the rents and prot1ts wh,eh have bc, n, or ought to have been, annually receiVld, and ered.ted with the yearly expenditures for reclamations, improvements, and taxes; and when snch an aecount has refercnee to hundreds of lots of ground,-it is of a most complex and involved ehalacter, wlndl eould not Le dealt with upon a trial at law at h1S' priu", and the complexity of the account is, there10re, a ground of equity jurisprudence. In a case whcre the complainant ll::ls recovered jndgment against several hundred actual tenants for rents and protits for varying portions of a long period, and Ihose tenants are and the defendant IS tLe warrantor of all those tenants, and whatever tbey owe the compJallJant the defendant owes to them; and when the defendant is not onh' a warranlor, hut a warrantor in bad faith, who has enriehed herself by in bad fa th the compla!,Ilant's property and selling it at a large pl'otit,-tlte complainant, having no re,lledy at Jaw upon tIJi. warranty for want of privity, has a right of achon in equity. Riddle v. JIandeville, 5 Oruneh, 322. Equity will not allow a party, ultimately liable, to keep, for his own advantage, an intermedi:tte and insolvent party in pos,eSSlOn, who .s, in responsible to tlw lawful owner, and therelly enrich him,clf out of the property of that owner thus dlsposses"d, and eSl:ape liallility to hlllr for want of a made of action.
:l. S.BIE-ACCOUNTING-RENTS AND PHOFITS OF HEAL EsTATE.
3.
SAME.
4.
SAUl';.
5.
RENTS AND PnOFITS.
According to all the authorit'es, both under the common law and the law of LouiSiana, a suit for rents and profits could nuL uave "e"n UI'uugl.lt uUlIl too eOlllplalllant had recovered Gaines v . .L\·ew Or;cttns, 15 \v' all. In an ejectment hill against a party hoMing by an adverse Htle, there could lle no trust raised up a, to tho price l'ecllh'ed UV 111m in l:ase ot s'ife.
6.
E.n,cT.\IENT-ThUSf.
7.
I'O,.SESSOIl IN BAD FAITH.
·
Tile pilsses,or in bad faith is bonnd to surrender the thing immeJiafe'y: and the s.:ll.·r and warrantor, whu tooK an,1 con ve.red in "au fa.tb, is bound forthwith to restore tho prL e to his vendee, and to acquit, i. e., for 111m his Habil.ty to the owner for frUits, w.thunt suit or condemnallun.
S.
He who, with a motive to deprive another of that which he knows Is justly that other's, e;uploys the process aud llIadllnery of tl e courts, is umler two to satisfy all damages wu.ch that other Ihcreby sulfers. The damac:es spl'inc:ing from the 'l'gitunate exere.se of legal rights, even when there IS absence of ma!ile, and therll iF good faith, mnst. to lhe settled law of Loui_iana, at least place the injured party in the situation in whkh he wou.d have been if the disturbance baJ not taken place. 9. "\YAHRANTY AND "\V AHRANTOR. The warra'ltar is, by the settled jurisprudence of Lou 1siana, thp defend. ant. The judgment is binding upon the warrantor it he lJeeo1 e"llvd in warranty, or he is apprised of suit having been llrought· · r.epltled br Joseph P. Hornor. Esq, oftM New Orlean. I,ar.
GAINES V. CITY OF NEW ORLEANS.
17
10.
SA)IE-BAD FAITH.
Where a party had, in bad faith, entered upon tIle property of another and lor an enormous price ($(;00,000) sold and conveyed it with warranty, and to avoid his liability as vendor and warrantor, i. e., to escape bein)l'; compelled to return to hiS vendee the price, and repay the fruits whwh the evicted vendee would be requ:red to pay to the owner, in bad faith, hinders the restitution of the land and its fruits to the owner, and, kleps 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. In the rents and profits of real estate, where ,the Jisseizin and possessio a have Ileen in bad faith, the account must include not only the rents, revenues, and values for use actually cd, Lut aiso 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 evidl,nce extrins:c to the a(,'tual receipts. satisfactory evidence may be fonnd in the rents for the very period in question derived from numerous other adjaee:lt, similarly sitnated, and nu Letter capacitated, and from ground rents during and for the same period. Pontchar:rain R.ll. v. Carrollton R. R. 11 La. Ann. 2;;8,259. NcGal'Y v. City of Lafayette, 12 Rob. (La.) 66:3; 4 La. Ann. 440. SAME.
11. HEXTS A1'ID PnoFITs.
12. -
The burden which bad faith places upon the defendant, according to the civil law and the jurisprudence of Louisiana, wnile it should le'ld to the assessment of no ua:nages or compensation beyond those aetnally sUIIered, requires the court to adopt conclusions fully warranted hy evidence. though, through the fault of the defendaut, it be derived in part from the rents and profits of other property adjacent and similarly situated. and no better capacitatcd. SAUE.
13.
An account tor rents and profits !")uIlJd be taken anI! s'atet1 as follows: The reut or income should be ascertained for each year separately, and upon the amount so ascertained for each year interest should be compllled down to the time the so that there may be interest upon each ycarly sum fa.1;n 6 due, but no upon interest. Gaines v. New O"leiJ.ns. 15 Wall. 6,,4.
JVm. Reed Mills and Alfred Goldthwaite, for complainant. J. If. Ecckwitlz and E. H. Fm'ra1', for defendant. BILLINGS, J. This cause is before me on a submission for a final decree upon bill, answer, replication, exhibits, and depositions, and npon exceptions to the report of the master. Tnere can be no doubt but this cause is one over which a court of equity must take jurisdiction. It is an iucident, and, in its nature, a supplemental proceeding, to a litigation as to,' the heirship ann title of the complainant to certain real property, which has been conducted in this comt between the p1trties hereto for npwards of 40 years, and always upon the equity side of the court. It is a suit for a discovery as to the means whioh have been employed by the defendant throughout this long period to prevent and hinder the complainant from recoveriu<:{ pos:3ession of this real property. See Comyn, Dig. "Chancery 3 B 1," where it is laid down that It bill for discovery lies even when the action to be supported sounds in tort. It is a suit for an acoounting a" to rents and profits of thia real property for the period of 45 years, which must be taken according to the laws of Louisiana, and in whioh, therefore, the defendant must be charged with the v.17,no.1-2
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.",