5 Watts 474 | Pa. | 1836
The opinion of the Court was delivered by
It is settled that a legal .right of action for mesne profits, dies with the trespasser. But it may be conceded that we would sustain an action of account render, for defect of remedy, as a substitute for a bill in equity; and the inquiry is, whether the plaintiff has shewn a case. In Pultney v. Warren, 6 Vez. 86, lord Eldon, premising that an account will not be decreed for the death of the trespasser, on the ground of accident merely, enumerates the cases in which relief was given, on the ground of a particular equity; all which are specifically different from the case at bar. The equity asserted by the plaintiff is a novél and a distinct one. It is the equity of creditors, to which, if it be an equity at all,f their vendee succeeds in order to make it effective; and it is supposed to spring from the defendant’s fraud in having delayed them by colluding with their debtor to conceal his property. A chancellor will certainly frustrate a legal advantage gained by the death of the trespasser after he had vexatiously delayed the plaintiff at law, by declaring him to have been a trustee of the profits; but in the cases specified, the party delayed had then acquired the title and an immediate right to be let into the perception of them. Such, too, was the position of the parties where the impediment, at law, was infancy, or the helplessness of a dowress. In cases of mines or timber, relief was had on another ground; but there, too, the defendant had acquired the title when the waste was committed. Here the creditors had neither a legal nor an equitable title to the possession, or the profits, when they are supposed to have been impeded; and there was no unusual impediment at law after they had acquired it. They had, not the estate, but a lien on it merely; and there is nothing to warrant an assertion that they would have had recourse to it in the debtor’s lifetime, had they known it to be open to execution at their suit. “ In these cases,” said lord Eldon, “there must be either a difficulty to recover at law; or fraud, or concealment, which enables
Judgment affirmed.