Wing in the trustee, his sale though not in eonformity to passed the legal title the game, leaving in May a quare roll 3 to bulk the male wet a-ide on appliand equity. This equitable das first prevail against a bona fie purghaug for sale, who has obtained the legal

It is not very dear, from appellant's brief. on what ground the right to relieve, in the abbeme of any frand on the part of LeClaire, is İstam due to be pand

It not only ate up a case different from but with and contradictory to that set forth in the ... The title to relief therein Bet 15 is based exclusively on the wrongfulness and invalidity of the trust deed sale, mainly on the ground of the fraudulent conspiracy; paryon account of a failure to sell in parcels. There is not a syllable so much as hinting at 20 2 rmance of that sale; and the purchase of, the title derived under it by LeClaire's representatives is not noticed in the pleadings at all. If intended to be relied on, it should have been alleged in a supplemental bill.

tia

But the case now set up in the argument as sumes and rests upon the validity of the trust ale, and claims for appellant the benefit of the title derived under it. To sustain such an argument would be nothing short of allowing a complainant to make an entirely new bill by argument upon the hearing, and that, too, in the appellate court. This cannot be done.

Hhielda v. Barrow, 17 How. 130, 15 L. ed. 158; Harding v. Handy, 11 Wheat. 103; Boone v. Chiles, 10 Pet. 177; Carneal v. Banks, 10 Wheat. 181.

There is a defect of parties, fatal to the relief wought by appellant. The title to the land he weeks to have decreed to be conveyed to him, is vested, in undivided shares, in all the devisees of A. LeClaire, who are very numerous. Only a few of them are before the court as parties. All are necessary parties; and no decree for complainant can be made without them. Shields v. Barrow, 17 How. 130, 15 L. ed. 158; Coiron v. Millaudon, 19 How. 113, 15 L. ed. 575.

This is an appeal in equity from the decree of the circuit court of the United States for the district of Iowa. The record is in a singularly defective and confused condition. But the case has been fully argued upon the merits by the counsel upon both sides, and finding enough in the record, upon looking carefully through it, to enable us to dispose of the controversy between the parties satisfactorily to ourselves without further delay, we do not deem it necessary to reverse and remand the cause, as we might otherwise do, in order that

the record may be ecrrected, and by a further appeal be brought up in the proper condition. Very v. Arredondo, 12 Pet 218; Mandeville v. Burt. & P. 26: Harrios v. V ron. 9 Pet. 483; Finley v. Lans, 6 Cranch, 252; Lewis v. Derling, 16 How. 1.

*The ease involves no legal question (*228 of any doubt or diffimity. Its determination depends wholly upon the fasts. The testimony and exhibits are very voluminous. It could erve no useful purpose elaborately to analyze them and set forth the results in this opinion. We shall content curselves with doing little more than to announce our conclusions. We shall not deem it necessary to give in detail the vidence upon which they are founded or the processes of argument by which they are supported.

The proposition submitted by May, of the 4th of February, 1859. its acceptance on the 5th of March following by LeClaire, since dereased, and the assent of May on the same day, constituted a valid contract. There was a large difference in value between what LeClaire was to give and what he was to receive. But we have found in the record nothing which raises a doubt that the arrangement was fair and just to both parties. LeClaire was a man of property and of experience in business. The date of the proposition and of its acceptance show that he took ample time to consider the subject. The acceptance was witnessed by John P. Cook, his counsel, and one of the defendants in this case. According to the face of the proposition it involved the settlement of unadjusted demands on both sides. It was made in a spirit of peace and compromise, and was accepted in a corresponding spirit. It is the duty of a court of equity to uphold such an agreement, to protect and enforce the rights of both parties under it, and to carry it out as far as the facts, which subsequently occurred, and the settled principles of our jurisprudence, will permit.

On the 10th of March, LeClaire, in pursu ance of the contract, indorsed to May the notes and mortgage of Adrian H. Davenport, and placed them, with certain collaterals which he had received from Davenport to secure the payment of the notes, in the hands of Cook & Sargent. At the same time May, also, in pursuance of the contract, executed to LeClaire a deed conveying the Rose Bank farm, and placed it in the hands of the same depositaries. Cook & Sargent were to deliver to each party what the other had deposited for him as [*229 soon as May should have removed all encumbrances from the farm, which he was bound by the contract to do within a year from its date. When LeClaire made his deposit he took from Cook & Sargent a receipt stating its objects and terms.

The firm of Cook & Sargent consisted of John P. Cook, Ebenezer Cook, his brother, and George B. Sargent. They were bankers. On the 21st of August, 1858, they executed to LeClaire a mortgage upon a large quantity of real estate. The consideration stated is $70,000. The mortgage recites that LeClaire had "accepted various sums for the accommodation of Cook & Sargent, and proposes to indorse and accept other and further sums for them, with the view of enabling them to borrow money on

them.

On the 21st of November, 1860, Antoine LeClaire bound himself by a written contract to convey the property to his nephew, Joseph LeClaire. In this condition of things Antoine LeClaire died. He left no lineal heirs. By his will he gave the usufruct of his entire estate to his wife, the defendant, Marguerite LeClaire, during her life. The residue he gave, in undivided shares, to a large number of devisees. Only a few of them are parties to this litigation. Davenport testifies that Antoine LeClaire made a parol contract with him for the Rose Bank farm and, as the consideration of the purchase, agreed to pay the liabilities of Eben233*] ezer Cook, which Davenport had assumed, and that his estate has since paid them. On the 23d of January, 1862, Davenport conveyed the premises to Joseph A. LeClaire, Jr., pursuant to directions from Joseph A. LeClaire, the vendee of Antoine LeClaire. The deed contains a covenant against all persons claiming under the grantor, and none other.

John P. Cook was the counsel of LeClaire in all his transactions touching this property. He knew everything that was done, and his knowledge was notice to his client. Le Neve v. Le Neve, 2 White, Lead. Cas. in Eq. 375. But we are well satisfied, by the facts and circumstances developed in the evidence, that both he and George L. Davenport had full actual knowledge. After a careful consideration of the subject, we have found ourselves unable to come to any other conclusion. The testimony of Davenport is guarded and peculiar. Twice during his examination he declined to answer a question until time was allowed him to advise with his counsel. The proofs establish the frauds alleged in the bill. Clark's Ex'rs v. Van Reimsdyk, 9 Cranch, 153, 1 Gall. 630; Jackson v. King, 4 Cow. 220; Butler v. Haskell, 4 Desaus. 684.

If LeClaire did not actively participate in the frauds perpetrated upon May, he coolly looked on, and deliberately gathered what others had sown for him. The result was that he acquired the Rose Bank farm unencumbered, and put it out of the power of May to comply with his contract.

The year within which May was to convey the farm to LeClaire, unencumbered, expired| on the 8th of March, 1860. On the next day LeClaire gave a formal written notice to May whereby he tendered performance on his part, and demanded performance by May. May was unable to fulfil and LeClaire knew it. The notice was an idle ceremony.

The liabilities of Adrian H. Davenport, which LeClaire had assigned to May and deposited with Cook & Sargent, consisted of five notes of $7,000 each, making an aggregate of $35,000, with interest. LeClaire withdrew them from

the foreclosure sale the property should sell for more than the amount of the notes and interest, Davenport was to have the overplus. If it should bring less the notes were to be released. If LeClaire should acquire the title as proposed, he agreed to confirm the sales, which Davenport represented he had made, of certain portions of the property. A map was referred to as showing the premises so sold. Davenport assigned to LeClaire, and placed in his hands notes of the vendees for part of the purchase money, amounting, with interest, to about $16,000. Davenport stipulated that there were no offsets against any of the notes, except two of trifling amount, which were mentioned, and that if it should prove there were any valid offsets, he would pay the amount to LeClaire. LeClaire agreed that, upon the payment to him of the balance of the purchase money by Davenport's vendees, he would convey to those holding title bonds from Davenport.

This agreement was carried out. A suit of foreclosure was instituted by LeClaire, and the property was sold to him for less than the amount due on the notes of Davenport. The property was thus devested of all encumbrances, and his original title was restored to him. John P. Cook, as the counsel of LeClaire, conducted the legal proceedings. May was not consulted about the agreement between LeClaire and Davenport, and was not a party to the foreclosure suit.

It has been suggested by the counsel for the appellees that if May still has the rights which he claims in respect to the Rose Bank farm, he should file a bill to redeem, and having succeeded, should tender a conveyance of the property in performance of his contract with LeClaire instead of prosecuting this suit. [*235 That course is unnecessary. LeClaire has already had the ownership, control, and full benefit of the property, and disposed of it as he thought proper. A court of equity can do no more than he did for himself. It is not pretended that there was an encumbrance upon the property when it was conveyed by George L. Davenport to Joseph A. LeClaire, Jr.

Upon the execution of the contract between May and LeClaire, LeClaire came in equity the owner of the farm. The fect of the element of fraud in his subsequent conduct is that he must be regarded as constructively the trustee and agent of May in removing the encumbrances and acquiring the ownership and beneficial control of the property. Hence his estate is entitled to be credited with his advances and interest, instead of the aggregate of the debts extinguished, and interest on that amount. Under the circumstances, time was not of the essence of the contract on the part of May, and when this liability had been accounted for to LeClaire's estate, the contract on May's

part must be held to have been fully performed. May has had no benefit from this property since the date of his contract, and none from what he was to receive from LeClaire. . On the contrary, he has been engaged in a long and expensive conflict for the assertion of his rights, and that contest is not yet terminated. Viewing the subject in the light of these facts, we think he is entitled to be credited with annual rent and interest from the time he parted with the possession of the farm to LeClaire.

At law, in many cases, if property be tortiously taken or converted, the tort feasor may be sued in trespass or trover, or the injured party may waive the tort and sue in assumpsit. In the latter case the same results follow as if there had been an implied contract. The defendant is not permitted to set up his tort to defeat the action, and the recovery of a judgment will bar a further action ex delicto by the plaintiff. Putnam v. Wise, 1 Hill, 240, note; Hill v. Davis, 3 N. H. 384; Stockett v. Watkins' Adm. 2 Gill. & J. 326, 342. In the same class of cases where the converted property 236*] *has assumed altered forms by successive investments, the owner may follow it as far as he can trace it and sue at law for the substituted property, or he may hold the wrong doer liable for appropriate damages. Taylor v. Plumer, 3 Maule & S. 562.

There are kindred principles in equity jurisprudence, whence, indeed, these rules of the common law seem to have been derived. Where

a trustee has abused his trust in the same

manner, the cestui que trust has the option to take the original or the substituted property; and if either has passed into the hands of a bona fide purchaser without notice, then its value in money. If the trust property comes back into the hands of the trustee, that fact does not affect the rights of the cestui que trust. The cardinal principle is that the wrong-doer shall derive no benefit from his wrong. The entire profits belong to the cestui que trust, and equity will so mold and apply the remedy as to give them to him.

In cases of specific performance, to which category the one before us belongs, parties are sometimes remitted to a court of law. But this is never done where the remedy is not as effectual and complete there as the chancellor can make it. Equity sometimes takes jurisdiction on account of the parties, and sometimes on account of the relief proper to be adminis

tered.

The same considerations which invoke the jurisdiction may control the remedy.

In this case more than half the residuary devisees of Antoine Le Clare are not before us. We cannot, therefore, decree the conveyance of real estate, but his legal representatives are before us, and we can give a money decree against them, embracing the value of the land, which we might otherwise adjudge to be conveyed. Peabody v. Tarbell, 2 Cush. 233; Andrews v. Brown, 3 Cush. 131; Fry on Specific Perf. 447, 457; 1 Story, Eq. §§ 788, 789. It is not necessary that the devisees should be parties to warrant such judgment. The presence of the executors is sufficient for that purpose.

Adrian H. Davenport, as well as Le Claire, had full notice of the rights of May in [*237 respect to the securities embraced in their compromise. All those securities, including the collaterals, belonged in equity to May from the time they were deposited with Cook & Sargent. Le Claire had no right to change their form or to dispose of them, as was done in carrying out the compromise agreement. It is within the power of this court, in the exercise of its equitable jurisdiction, to annul that arrangement, and hold Davenport and Le Claire's estate liable in all respects as if the compromise had not been made. But it is also in our power to confirm the transaction, and upon the principles of constructive trusts to give May its fruits, instead of pursuing the effects themselves. This, as the case is presented in the record, we deem the proper course. Le Claire's estate must account for the proceeds of the $16,000 of notes, with interest from the time he received them. As we cannot require the land which he bought at the foreclosure sale to be conveyed, his estate must account for its present value. As he violated his agreement with May, and put it out of his power to give May in specie so large a portion of the consideration May was entitled to receive, May is not bound to take the other parcels of real estate mentioned in the contract and which Le

Claire bound himself to convey, and it is within the scope of our jurisdiction to give May, in money, the present value of that property also instead of the property itself. We deem it proper, under the circumstances, to do so, and Le Claire's estate must account accordingly. The collection of the judgment against May upon his note to Kettle, recovered by Cook, must be perpetually enjoined.

wherein Le Claire's estate must be debited with An account must be taken by a master, the rent of the Rose Bank farm annually, and interest down to the time when the account is

taken.

With the amount realized from the $16,000 of notes and interest to the same period.

With the value, at the same time, of the land bought in at the foreclosure sale by Le Claire, other than that previously *sold by Da- [*238 venport, the title to which Le Claire took in trust for Davenport's vendees.

With the value, at the same time, of the other parcels of land mentioned in the agreement between Cook and Le Claire and which Le Claire bound himself to convey to May.

Le Claire's estate must be credited with the amount paid on account of the bill and note of Ebenezer Cook, with interest to the same time.

The balance in favor of May, with interest from that time, Le Claire's executors must be required to pay to May.

These conclusions will do justice to May without disturbing the interests of any third person outside of the sphere of Le Claire's estate.

The decree of the court below is reversed, and the cause will be remanded, with directions to enter a decree and proceed in conformity to this opinion.

55

fer

of an as putting the mattre loto possession under it and at that pos8-6000 £70 1646 at 1964, 8 expetent evidence to sustain a title.

(No. 210.1 Submitted Feb. 19. 181 Decided Feb. 20, 1871.

IN ERROR to the Greit Court of the United

IN ERROR to the Direct Court of

The bill in this case was fled in the court below, by the plaintiff in error, for the recovery, of certain real estate. Judgment having been given for the defendants, the plaintiff sued out this writ of error.

The case is stated by the court.

Mr. John Wilson, for plaintiff in error: The plaintiff, to support his claim, had put in evidence the espediente of the original concession to Lazaro Peña by which it appeared that Peña presented his petition to the commandant general for a concession of this land, Oct. 14, 1839, and that the commandant general granted the land to him upon condition that he would apply to the governor for a reg. ular title. This act of the commandant, did not, could not, pass any title; at best it only passed leave to possess for the present.

In December, 1839, while the grant was in this condition, Peña old and conveyed all his right in the land to M. G. Vallejo.

All that Peña had then, and all that he could pass to Vallejo, was the slightest equity.

In June, 1840, Peña petitioned the governor in due form for a grant of the land.

July 13, 1840, the governor granted the land in full property to Lazaro Peña. Peña did not present any claim to the board, nor did his heirs.

M. G. Vallejo in March, 1853, presented his claim to the board of land commissioners for confirmation to him of his title to the whole of said rancho. under the said grant to Peña. The ard rejected the claim; and, on an district court confirmed the same

Thas the plaintif showed these decrees, and, under them, a clear chain of title from Vallejo, the confirmee, and an adverse possession held by the defendants, and rested.

This echirmation vested the legal title to the land in Vallejo, the ecnirmee, and from bim passed to the plaintif, Steinbach.

That it did so. See the following cases deided by the supreme ecurt of California, by which this principle has become the settled law

of the state:

Estrada v. Murphy, 19 Cal. 248: Leese v. Clark, 18 Cal. 533; Clark v. Lockwood, 21 Cal. 220. The opinion of the court in these cases was given by Ch. J. Field.

Emeric v. Penniman, 26 Cal. 124; O'Connell v. Dougherty, 32 Cal. 458, with many others.

The defendants had set up title in fee in themselves, to those parts of the ranch which they occupied, and began by offering to show title in themselves, by a chain of title direct from Peña, the grantee of the ranch.

The plaintiff objected, because at best it could only be an equity; that no such defense was set up in their answers; and if it had been, such a defense could not be made in the circuit court of the United States. To sustain the position of the plaintiff in this, we beg leave to refer to the following decisions made by this court:

Bennett v. Butterworth, 11 How. 674: Fenn v. Holme, 21 How. 451, 16 L. ed. 198: Stringer v. Young, 3 Pet. 320: Lessieur v. Price, 12 How. 72: Greer v. Mezes, 24 How. 275, 16 L. ed. 663; Sheirburn v. Cordova, 24 How. 425, 16 L. ed. 741; Hooper v. Scheirmer, 23 How. 235, 16 L. ed. 452; Bagnell v. Broderick, 13 Pet. 446.

These authorities, we doubt not, are ample to show both our propositions: First. That having pleaded a legal title in themselves, they could not set up an equity. Second. That if they had set up an equity, it could not have been sustained as a defense to an action of ejectment, where the legal title only can be used by plaintiff or defendants.

Second exception. To the ruling of the court by which the defendants were permitted to give in evidence a paper signed by Vallejo, the confirmee, dated August 12, 1846.

The counsel for plaintiff objected to the reception of this paper as evidence, for the defense, because the same did not convey any estate from Vallejo to Hoeppener, and that it