Terry, C. J. concurring.
This bill is filed to settle and recover the value of the rents and pirofits of a certain ditch, or interest therein, bought by the plaintiff at Shеriff’s sale. The defendants are in possession. The proceeds of the sales of water, etc. sought to be recovеred arise from the property since the Sheriffs sale, and before the expiration of the period limited by statute for thе redemption. Treating this species of property as real estate, subject to its incidents and laws, we are brought to consider, as the main point presented by this appeal, whether these intermediate rents or profits go to the purchаser at the Sheriff’s sale, when the judgment debtor is in possession. This question involves the construction of the 236th Section of the Practice Act, (Wood’s Dig. 198.) That Section is in these words: “ The pmrcbaser from the time of the sale until a redemption, and a redemptiоn er, from the time of his redemption until another redemption, shall be entitled to receive from the tenant in possession thе rents of the property sold, or the value of the use and occupation thereof.” It is very true, as argued by the Appеllant, that a purchaser, by the mere fact of his purchase, does not get title to real estate. His right is rather the right to get а title in a given contingency, and the transaction an executory, not an executed, contract. But it does not follow, because he is not clothed with a perfect title, or even because he is not.personally entitled to the possession, that he has no rights in the premises. He may have a perfect statutory right to the profits, without having a right to the subject out of whiсh the profits proceed. Indeed, it is conceded by the Appellants that this is true as regards the party in possession, if that party is a tenant of the judgment
The phrase “ the tenant in possession,” is a generic term, intended to designate .the class of persons from whom the purchaser was to receive the rents. The languagе is not that, when a tenant of the debtor is in possession, the tenant shall pay the purchaser, or that the debtor, when in possеssion, shall not; but the phraseology designed, evidently, to fix a general right, applying to all eases of tenancy, for none аre excluded.
It is not very easy to see the reason for such a distinction as that contended for. It would give but little help to thе purchaser, since the debtor, on the eve of judgment, might change a possession by tenancy, afid take possession personally; or change the terms of tenancy so as to make of little or no value the purchaser’s right; and why should a debtоr be any more inhibited from getting profit from rent than getting profit from use—in this case, from authorizing other persons to sell water, and selling it himself? The definition of “ tenant in possession ” embraces, within the natural and usual meaning of the words, a judgment debtor as well as his lessеe. The owner in fee in possession is no less, in legal contemplation, a tenant, than the man who occupies under him. Thе definition of tenant is, “ one that holds or possesses lands or tenements by any kind of title, either in fee, for life, years, or at will.”
The ■concluding words of the section of thе statute we are considering lends some strength to the construction we give; for, after providing for the recovery of the rents of the property sold, the words “ or the value of the use and occupation ” are added; these latter words applying to, and covering, the case of the possession of the debtor.
If wo could see a stronger reason for the distinction insisted on than we have been able to perceive, yet, as the language of the Act is precise, and makes no exception of the judgment debtor, we could nоt without interpolating a new provision into the statute, exclude a class of persons fully within the definition, any more than we could include a class not embraced by its terms.
The only other question is as to the remedy. It is argued that, conceding the plaintiff’s right, a bill in equity of this sort is not the appropriate means of relief. But we think otherwise. The defendants being in possession of this propеrty, were Trustees for the plaintiff. The profits consisted of many sales and transactions, requiring the settlement of a long and cоmplicated account, which could not well be settled at law; besides, many other equitable circumstances exist here—the alleged insolvency of defendants; the partial conversion of the fund; the threatened loss of it; the interest of other parties requiring adjustment and settlement. The further fact that Reynolds was the Treasurer of the ditch company into whose hands the installments due on the interest sold as his came, is also of force in showing the propriety of this remedy. The whole bill, however, might well rest on these facts, that the defendants were merely Trustees of this fund for the plaintiff, and that the fund was in danger of loss; and these facts would uphold the power of chancery to protect the trust property.
Decree affirmed.