3 Wyo. 513 | Wyo. | 1891
Lead Opinion
This is a suit for specific ■performance of certain alleged contracts for the conveyance of realty, and to enjoin the holder of the legal title from prosecuting actions of ejectment at law for the possession of such realty. Defendant and appellee, Juliet W. Hart, holds, •and since June 28, 1884, has held, the legal title to the property in question. Complainant and appellant, Ed. D. Metcalf, holds, and since an earlier date has held, possession of the same, claiming an equitable right thereto. The property consists of lots 1, 2, and 3, and the northerly 5 feet of lot 4, in block 1,- and lot 11, and the ■southerly 8 feet of lot 12, and the northerly 6 feet of lot 10, in block 18, in the town •of Buffalo, Johnson county, Wyo. All of this property was included in a desert land entry made by Verling K. Hart, June '9,1879. He died intestate, February 17, 1883, having made final proof and payment under his desert-land entry September 27, 1882; and patent for the land was issued in his name, accruing to the benefit of his heirs, January 19, 1884. The legal title of defendant and appellee she derives as widow and one of the heirs of said Verling K. Hart, deceased, and by virtue of proceedings in the probate court of said county of Johnson for the settlement and distribution of the estate of her deceased husband. The other heirs are three minor children of herself and the deceased. The equitable title of complainant and appellant he derives from an alleged promise or agreement made by Verling K. Hart, for the purpose of encouraging the building of a town upon the land included in his desert entry, that upon acquiring title he would sell and convey to each resident who should have improvements upon said land that portion occupied by such improvements at a nominal or small price. Complainant claims that on account of such promise he occupied theland described as in block 1 in the spring of the •year 1882, and then and afterwards made valuable improvements upon it. He also claims that the land described as in block 18 was occupied and improved in the summer of 1882 by one William Burgess on account of said promise of said Verling K. Hart, and with his knowledge, and without any objection by him, and that complainant succeeded to the rights of said Burgess by purchase in 1883, and has ever since held possession of this property. After the death of Verling K. Hart, and before the issue of the patent for the land included in his desert entry, a number of the citizens of Buffalo made affidavits and protests against the issuing of the patent. This resulted in an instrument in writing in the form of a contract with the people of the town of Buffalo, dated September 20, 1883, and signed by Juliet W. Hart, who is described in the body of the instrument as administratrix of the estate and guardian of the minor children of Verling K. Hart, deceased, stating terms and conditions upon which she would, upon obtaining a patent from the United States for the land upon which the said town is situated, sell to the parties in possession certain lots within said town. It is to be observed that the plat of this town dividing it into lots, establishing streets and alleys, etc., in fact making it a legal, unincorporated town under the laws of the territory of Wyoming, was not filed in the office of the county clerk till July 29, 1884, more than 10 months after the date of this alleged contract for the disposal of lots in the town. One of the conditions upon which Mrs. Hart so agreed to convey lots on the terms in the said instrument spec
Before the commencement of this suit defendant had begun two actions of ejectment against complainant for the possession of the realty described as in block 1 and in block 18, respectively. Complainant asks that defendant be enjoined from further prosecuting said suits, and asks for a decree for the specific performance of said alleged contracts for the conveyance to him of said realty, or, if that be denied, that the value of his improvements be ascertained and allowed to him, and made a lien upon the property. . The answer of defendant denies that Verling K. Hart ever promised to sell or convey any portion of theland embraced in his desert-land entry upon obtaining patent therp-for to settlers making improvements, or to any person or persons for a nominal price, or any price: denies that he ever encouraged or permitted such settlements or improvements to be made on theland; denies that he knew the improvements of complainant or Burgess were made; denies that the instrument of date September 20,1883, is a contract which may be enforced ; denies that the conditions upon which it was to take effect ever came to pass; and asks that she be dismissed, with costs. These, in brief, are substantially the issues made by the pleadings in this suit, and upon which the cause was tried, the evidence taken, and the cause argued and submitted, in the district court.
A preliminary objection to the bill is made by defendant that the other heirs of Yerling K. Hart, deceased, should have-been made parties defendant; that the claim of complainant is a charge upon the interest of all the heirs in the j’eal estate; and that all should have been joined as defendants, to prevent a multiplicity of suits, it is sufficient to say upon this point that defendant herein alone is claiming the property, and that she alone brought the actions of ejectment against complainantfor its possession. Complainant has a right to defend his possession by proper suits when assailed, and it occasions no multiplicity of actions to seek other relief in the same suit or suits.
It is also urged that complainant is-chargeable with laches in not bringing his suit sooner, and therefore should not be allowed to prosecute his suit now. The delay is not claimed to have occurred since the commencement of the actions of ejectment by defendant. Any delay prior-to that time is chargeable to her at least equally with complainant. Some of the-time was occupied with mutual negotiations for settlement, and, besides, complainant was in possession of the property. If wrongfully so, it was incumbent on defendant to put him out of possession-without undue delay, at least to as great an extent as it was upon him to perfect his-title.
The court below found in favor of defendant; found that the , possession óf complainant was wrongful and tortious since June 28, 1884; and dismissed his original, and amended bills; and,among other things, gave judgment against him for-costs. So far this is just the relief, and all the relief, sought. by defendant in her answers to complainant's original and amended bills, and leaves her at liberty to-prosecute her actions of ejectment for the-possession of the property, and for damages for its detention, if she so desire,— causes of action which might be joined by the law in force at the time these actions-were begun and still in force. And this-would seem to be an adjudication upon all of the issues made by the pleadings. But the court below did not stop here. In its decree is embodied an order allowing defendant to file a cross-bill. Accordingly we find a cross-bill of defendant indorsed as’filed the same day of the rendering of the decree, December 13, 1889. We-also find that the motion for leave to file this cross-bill was made only the day before, and taken under advisement by the court. Under the issues in the cause (tor-no issue was made, or could have been made, under this cross-bill) all the relief asked for by defendant was “to be hence-dismissed, together with her reasonable costs and charges in this behalf incurred and sustained. ” When the two actions of ejectment were begun, and when this suit, was begun, the law practice and chancery practice were separate. The defense in. this suit, up to the day before the rendering of the decree, was evidently conducted upon the idea that it was best for defendant’s interest not to ask any affirmative-relief in this suit, but merely to oppose and defeat complainant’s application for
What induced this very radical change in the views of defendant as to the relief she ought to seek in this particular suit the transcript of the record before us does not disclose. But the brief of her counsel filed herein informs us that the case was heard at the June term, 1889, of the district court, and reserved for consideration, and that in September, 1889, the district judge filed an opinion. This opinion is quoted at length in the brief. No cross-bill had then come to light. The pleadings were the original and amended bills of complainant, considered together as one bill, it seems, without objection, and the answers thereto by defendant, and the replication by complainant. The complainant claimed in his pleadings, and endeavored to show by his evidence, that he was entitled to an injunction restraining the possessory actions at law of defendant upon her legal title, and to a conveyance of the property in controversy to him from defendan t, or, if this should be denied, at least to the value of his improvements. The pleadings and proofs on the part of the defendant were intended to show the contrary of all this, and that defendant should be dismissed, with costs, and left at liberty to pursue her actions at law. For this she asked, and for nothing more. The opinion of the learned chancellor who tried this cause in the court below was against the complainant on every branch of his case, and denied him all of the relief sought. It also indicated that a decree should go against him for the possession of the property, and for rent from date of defendant’s commencing the suits of ejectment, or from September 7, 1885, whichever was earliest; and that complainant should be allowed nothing for improvements, but should be allowed for taxes actually paid by him. The opinion then proceeds: “The cause having been brought in equity to- enjoin the prosecution of an action of ejectment, and to compel a conveyance of the property, it falls within that category of cases where the chancellor, being possessed of the whole case, shall render all the relief to which the parties are entitled.” This principle is eutirely correct, but it applies just to the “whole case, ” and nothing else. And the “ whole case” is just the case made by the pleadings, and is constituted of the issues formed by the pleadings, and nothing else; and the relief which the chancellor may render is such, and only such, as the parties show themselves entitled to by their pleadings, and by evidence pertinent to those pleadings; and the prayer for relief is part of the pleadings.
In this case, at the time of the filing of this opinion of the chancellor, there was no prayer for affirmative relief by defendant at all. She had filed no cross-bill; neither any pleading setting up grounds for or claiming affirmative relief. As already stated, she merely asked to be dismissed, with costs, and she made no prayer for general relief. The rule upon this subject, in which all the authorities concur, is well stated by Black in his recent valuable work on Judgments: “According to the settled practice in equity, tlie rule in regard to decrees is similar to that just stated, as governing judgments at law, viz., that it is error to decree relief not sought in the bill. In other words, if the complainant has prayed forspecific relief in the premises, or relief as to a specific subject-matter, no more extensive relief can properly be accorded to him.” 1 Black, Judgm. § 141. This language mentions complainants only, but the same rule applies to defendants when they seek affirmative relief. They then become complainants in effect, if not in name. There are some authorities to the effect that relief may be granted which is not asked for in the formal prayer for relief, but such
It would appear that defendant, finding relief which she had not sought in the case about to be cast upon her, endeav ored to prepare a pleading to sustain the proposed decree. On December 12th she presented her cross-bill, and moved for leave to file it. This motion was taken under advisement. The next day the de. cree in the cause was rendered, including an order sustaining defendant’s motion for leave to file her cross-bill, and grant, ing her all the relief asked for in her cross, bill, except interest. From this decree complainant appeals. The statute in re. gard to cross-bills, in force when this suit was begun, ánd under which it must be concluded, is found in the Compiled Laws of 1876, as follows: “Sec. 681. Any defend ant may, after filing his answer, exhibit and file his cross-bill, containing his in terrogatories to the complaint or com plaints, [complainant or complainants is evidently meant,'] and call upon him or them to make answer thereto. In such case, the complainants shall be held to answer, plead, demur, or except to such cross-bill in the same manner and under the same penalties that a defendant or defendants are hereinbefore required to answer, plead, demur, or except to an original bill. If the cross-bill is filed in term-time, the complainant or complain ants shall answer within such time as the court may order; if filed in vacation, the complainant or complainants shall answer such cross-bill within the time here-inbefore prescribed for defendants to answer original bills; and the issuance, service, and return of subpoenas or publication of notice in case of non-residents shall be the same as hereinbefore provided in the commencement of actions in chancery. ”
The argument of defendant is that this section by its terms applies only to cross-bills seeking discovery. The interrogatory clause is omitted from defendant’s cross-bill. Therefore, it is claimed, this section does not apply, and the common-law rule governs. If this be so, which is not admitted, no common-law rule has been shown denying complainant the opportunity to answer a cross-bill. It is further argued that the relief sought by the cross-bill is only such as results to defendant from her successful denial of complainant’s original and amended bills, and such as might have been claimed in her answers to those bills, and therefore her cross-bill admits of no answer. This is a non seqnitnr. Admitting that the claims for the very important affirmative relief demanded by the cross-bill might have been set up in the answer of defendant, they would then have been denied by the replication, and would have been in issue when the cause was tried and submitted. As it is, they have never been in issue at any time.
The doctrine of estoppel is invoked against complainant. It is claimed that, by his pleadings and proofs already in the record, he would be estopped from setting up any possible defense'to'the matters al
The decree has also adjudicated the mat tere properly in issue; that is, the question of the specific performance of the alleged contracts, the question of compensation forcomplainant’s improvements, and the question of enjoining the prosecution of the two actions of ejectment. It is therefore necessary to examine this adjudication, and to determine as to its correctness.
As to the alleged contract of Veiling K. Hart to give title, when he should himself obtain title by patent, to occupants of the land who had made improvements thereon. At the time these promises or representations were made Hart had no title, and could give none-It is not alleged that he promised to pro cure title, or to make any effort to procure title. This consideration, while not con elusive, seems unfavorable to complain . ant’s equities. Neither is there any alie gation or proof as to the amount or char acter of improvement that would be re quired of the settler to entitle him to the benefit of the alleged pz’omise. Improve ments are spoken of, and the building of a burgh. An improvement might be a laz’ge business house or.a pig-sty; and the building of a burgh might consist, izt part,in the erection of one or the other, oi both. It would seem that Hart eonsid ez-ed that he had a right to object to the construction of inferior buildings on his land, and in one case intimated that he-did not regard such as entitled to consideration. Neither is the quantity of land fixed to which a settler would be entitled on account of improvements of any character. Fischer speaks of a lot. McCz’ay mentions improved lots and adjoining lots as though two lots were intended to accompany each “improvement.” Neither is any pz-ice fixed. It was to be a small price, or a nominal price. Large latitude is not excluded by these terms. In McCray’s testimony he speaks of a nominal figure that would about pay the expense of platting, etc., and says he thought $10 for improved lots, and $25 for adjoining lots, too low; that he would fix the figures at $25 and $40 or $50. It may well be doubted whether the settlers generally would consider these prices nominal, or whether they can Tzroperly be called nominal; and McCray mentions one amount as a nominal price for improved lots, and a different and larger amount as a nominal price for adjoining lots. These terms “nominal prices” and “small pz’ices” leave much room for controversy. A contract cannot be specifically enforced when it leaves any of its terms open to future treaty, or to be afterwards settled. These elements of incompleteness and uncertainty in the alleged contract are fatal toa claim for specific performance.
This brings us to the written instrument of. September 20,1883. The first clause of this instrument reads as follows: “ Know all men by these presents that I, Juliet W Haz't, administratrix of the estate azzd guardian of the minor children of Verling-K. Hart, deceased, do hereby covenant and agree, to and with the people of the town of Buffalo Wyo that I will, upon
It may be said that Mrs. Hart was endeavoring to secure the issue of the patent upon the desert-land entry of her deceased husband, and that the phrase “obtaining a patent” in the contract merely means so securing the issue of that patent. There are many things to sustain this view. This is the patent which all the parties interested were discussing. This is the patent the issue of which the citizens were opposing. This is the patent which defendant, Mrs. Hart, sought to free from further opposition. This patent seems to have been regarded by the people as empowering Mrs. Hart, as ad-ministratrix, to sell portions of the land. It had not occurred to Mr. Elliott that this was not the case, and he represented the people of Buffalo. If such is the meaning of the phrase “obtaining a patent” in the contract, then the contract is one which it was and is simply impossible to perform according to its terms. The issue of the patent to Yerling K. Hart gave Juliet W. Hart no power or authority to sell or convey any of the land. It gave her no such authority, either individually or as guardian, or as administratrix, or as widow and heir, or in all four capacities put together. It may be said that Mrs. Hart, having contracted to sell and convey property to which she had no title at the time, on afterwards acquiring title from any source should be held to sell and convey according to her contract: that the source of the title is not material; that the qualification, “upon obtaining a patent,” in the contract, is nota material part of the contract, and may be rejected as immaterial or as surplusage, and the contract enforced without it. This is dangerous ground. Such a course in this case would evidently change the meaning and intent of the contract from what was in the contemplation of thepartiesat the timeit was made and accepted. The parties evidently acted under the impression that, upon the issuing of the patent to Yerling K. Hart, Juliet W. Hart, as administratrix of his estate, could convey out of such estate before distribution the portions of the realty belonging thereto which are called for by this alleged contract. This would have reduced the estate to the diminution of the inheritance of all the heirs in proportion to their interest. This is evidently what was intended, and not that the contract should be filled out of the share of oue heir after distribution. It could not be known, when the so-called contract was made, which heir would get the property described, or whether any of them would. It might have been necessary to sell it to pay intestate’s debts. The time fixed for the performance of the contract, “ upon obtaining a patent, ” sustains this view, and it is consistent with no other. No time is allowed for distribution. No such contingency was provided for, or, it seems, thought of. If the phrase in the contract “ obtaining a patent” means the issuing of the patent to Verling K. Hart, then it follows, from the foregoing considerations, 'that the contract cannot be enforced according to its true intent and meaning. If the phrase has its natural meaning, according to the order and sequence of words in the contract where it occurs, and means the obtaining of a patent by the contracting party, Juliet W. Hart, in her own right, then that contingency upon which the contract should take effect has never occurred. In either view, the action for specific performance must fail. There are other considerations leading to the same result, but these seem to be controlling and conclusive.
Then the question remains, what is the true relation of this complainant to the
“License” is defined by Abbott to be, in its general sense, permission; consent that a j)erson may do some act which without such consent he might not lawfully do. An authority to do some one act, or series oi acts, on the land of another, without possessing any estate in the land.' Bouvier’s definitions of the term “license” are substantially the same. These definitions, like most short definitions, are incomplete. A license may be to do some act, without going on the land of another, which will interfere with the owner’s possession, enjoyment, or control; and a license may result from approval of acts of the licensee after they are done, as well as from permission previously given. Yerling K. Hart, by his desert-land entry of June 9,1879, acquired the right of possession of a tract of land, including that upon which the town of Buffalo was afterwards built. As he told several parties, he could give them no title under that entry. He could, however, waive his possessory right, if he chose to do so, and give them permission to enter upon his “claim,” occupy portions of the land, and build there. The question is, did he do it? and, if so, did such permission inure to the benefit of this complainant, and to what extent? The solution of these questions requires an examination of the evidence.
A. J. McCray testifies that he conversed with Hart in March or April, 1881. Said to Hart that he supposed they were building a. town on his (Hart’s) land, or what would be his land; that a few7 of them had gone ahead and started a little burgh, not knowing what the future would be, or where a title was to come from. Asked Hart if Snyder was bis authorized agent. Hart said Snyder was his authorized agent, and that he would abide by what Snyder did; and that if what few men were there made a little, burgh he would do all he could to assist' them in improving the property, and that they should have titles at a nominal figure when he was able to convey to them. At this time complainant was not at Buffalo; neither was Burgess. McCray told this to a number of the settlers. He also talked witli Hart on the subject in the fall of 1882, and Hart then expressed himself as greatly surprised and pleased at the progress the town had made, and again assured him that the people would have no difficulties in procuring titles as soon as he could convey them. By this time both com7 plainant and Burgess were there, and had erected improvements. John A. Fischer talked with Hart upon the subject repeatedly in 1881 and 1882. Hart told him he would like to see people come to Buffalo and settle, and if he (Fischer) could influence parties or friends on the railroad to come, he would be glad if they would settle there and make a town ; that mechanics, blacksmiths, shoemakers, or all good people that would locate there he would give a lot, after the town was laid out properly, for very little expense. In answer to the question whether this was generally known, Fischer says, “Yes, sir; it was known. Most everybody expected the first settlers had their lots for nothing. * * * I think the expenses were attached to recording. The people had to stand that, as I understood from Col. Hart. ” GeorgeW. Munkers, probate judge and treasurer, talked with Hart at Buffalo in the fall of 1882, and asked “the price of ground.” Hart declined to give any positive answer, as he had not title, but answered that the “price would be very nominal.” Munkers says: “He conveyed the idea, to me that the parties first building he was willing to encourage them tor a nominal sum for the land.” There is no testimony conflicting with this, but other testimony which corroborates it. None of these declarations of Hart’s were confidential. They were not personal to the parties to whom they were made. Hart’s assurances to McCray were for the men who built a burgh; to Fischer, in favor of mechanics, and all good people who would come and settle there; to Munkers, in fa■ vor of those first building. The understanding of Hart with his partner, Snyder, and which was made public, w7as for the benefit of those who should have buildings in the limits of the town when the survey should be made.
These matters were all made public, and were intended to be made public, and were intended to influence the people generally. They were not confined to people at or near Buffalo at the time. Hart requested Fischer to make them known on the railroad, a great distance away, and influence people to come and settle at Buffalo. IS
The first part of this definition applies to a mere naked license, without consideration. Such a one has beeu considered astounded on personal confidence, and not assignable, and revocable at the will of the licensor. But the cases are numerous of licenses founded upon valuable consideration where the motive of personal confidence, if it existed at all, is a very subordinate one. The material question is whether permission to go upon the land of the licensor, and do any act or series of acts there, was actually given, either expressly or by implication. In this case we have seen that such permission was given, and that the occupation and improvement of the property was ratified by the language and conduct of Hart, the licensor, after considerable expenditures had beenmadebythelicensees, Metcalf and Burgess. As already stated, the general doctrine of the common law has always been, and is now, that a simple parol license is revocable at the will of thelicens- or, and is revoked, ipso facto, by the transfer of the realty by the licensor, or by his death, or by an assignment of the license. The conflict of authority already mentioned is principally among the common-law courts. Courts of chancery have not developed nearly so much conflict. But even the law courts hold with much unanimity that a license by parol, as well as written, when coupled with an interest, becomes irrevocable, except in cases where such irrevocability would conflict with some other rule or principle or policy of the law. In such cases there is a conflict of opinion in courts of the highest respectability as to which rule should give way. The rule under consideration is laid down by the supreme court of the United States, opinion by Chief Justice Mahshali., in Hunt v. Rousmanier’s Adm’rs, 8 'Wheat., at page 203: “This general rule that a power ceases with the life of the person giving it admits of one exception. If a power be coupled with an interest, it survives the person giving it, and may be executed after his death.” And, similarly, a license coupled with an interest is not revocable by a conveyance of the x'ealty to which it relates. This appears from Hunt v. Rousmanier’s Adm’rs, supra, and there is no conflict of authority upon that point, except as stated above, where some other rule or principle intervenes, such as the statute of frauds. It should be remembered that a license is a power. The difference bet ween asimple license and a license coupled with an interest is clearly set forth and illustrated by Chief Justice Vaughan in Thomas v. Sorrell, Vaughan, 350, in the following language, which has been extensively quoted,and always with approval: “A dispensation, or license, properly pass-eth no interest, nor alters or transfers property in anything, but only makes an action lawful which without it had been unlawful. As a license to go beyond the seas, to hunt in a man's park, to come into his house, are only actions which without license had been unlawful. Butalicense
But instead of oral permission to leave goods on thelandof another for safe-keeping or other purpose, and to enter upon the land, it may be repeatedly, to take them away, suppose oral permission is given to build a house there, and to enter at will upon the land, and hold it for the purpose of occupying, using, and enjoying the house, without limit as to time. This is the creation of a permanent interest or estate in or upon the land, which, by the common law and the statute of frauds, cannot be created withoutwriting. It is not doubted that such a parol license would be valid, and would • be sufficient authority-to j ustify the party acting upon it in b uild-ing the house and occupying the premises so long as the license remains in force. There is no difference of judicial opinion upon this point. “License” is defined to be a power or authority, and so long as the license is not countermanded, the licensee is actingin thelicensor’s own right, and in his stead. Qui Tacit per nlium Tacit per se. The point of divergence in the authorities is the question whether such licenses, when executed in whole or in part, and at considerable expense incurred on the faith of the license, are revocable at common law; whether they are revocable at the will of the licensor, notwithstanding the consequent loss of the licensee of expenditures made in good faith, and whether they are, ipso facto, revoked by the death of the licensor, or by the transfer of the property by him, or by the transfer by the licensee of his interest.
The early English cases of Tayler v. Waters, 7 Taunt. 374, and Wood v. Lake, Sayer, 3, held such licenses irrevocable. But these cases were overruled in the later cases of Hewlins v. Shippam, 5 Barn. & C. 221, and Wood v. Leadbitter, 13 Mees. & W. 837; and since the latter case it has been the doctrine of the English law courts that an oral license to enter upon realty and make improvements cannot be made to operate as a valid grant of a permanent interest or estate or easement in the realty, although executed, in whole; or in part, by the licensee, and even at great expense. This doc trine of the English law courts has been quite extensively adopted in the United States. The case of Cook v. Stearns, 11 Mass. 533, decided in 1814, has become a leading case in this country. It is an action of trespass quare clausum fregit, and adopts the English rule strictly. Massachusetts having no chancery courts, it might have been expected tnat there, as in Pennsylvania, the law courts would undertake to administer equitable relief under the common-law forms; but it seems that such was not the case. The case was tried simply as an ordinary action at law, without an intimation, either in the opinion of the court or the briefs of counsel, that any equities could possibly be considered. The case of Mumford v. Whitney, 15 Wend. 381, decided in 1836, also strictly follows the common-law rule. It was an action on the case at law, and there seems to be no reason apparent why it should not follow the common-law
But the decisions of.the law courts have not been at all uniform upon this question. Some of them have applied the doctrine of equitable estoppel when necessary to prevent fraud, and have not allowed the license to be revoked. But probably the weight of authority is with Cook v. Stearns. But the case at bar is a suit in equity, and the question is not what is the legal doctrine, but what is the equitable doctrine. And every authority in favor of applying the doctrine of equitable estoppel in a law court applies a fortiori in a court of equity. But the refusal of a court of law to apply such doctrine is no authority against applying it in equity. In a number of cases at law involving the question under consideration, courts and judges, recognizing the harshness of the established legal rule, have suggested that equity might furnish relief. See Den v. Baldwin, 21 N. J. Law, 390; Foot v. Railroad Co., 23 Conn. 214; Bridges v. Purcell, 1 Dev. & B. 492; Prince v. Case, 10 Conn. 375; Benedict v. Benedict 5 Day, 469; Foster v. Browning, 4 R. I. 47. The following note to Hall v. Chaffee, 13 Vt. 157, by Judge Isaac F. Redeield, is suggestive. He says: “I have no doubt many cases, both English and American, may be found, and those of high authority, which either directly or indirectly recognize the doctrine that a parol license to enjoy an easement growing out of land, when once executed, becomes irrevocable, and the right thus acquired permanent. [Authorities cited.] But I apprehend the just weight of authority, both English and American, in regard to the rights of the parties at law, is that such license is within the statute of frauds, and, unless in writing, countermandable at will, even when executed so as to make any further enjoyment of the easement a ground of action. If such a license be given by parol and expense incurred upon the faith of it, so that the parties cannot now be placed in statu quo, there would seem to be the same reason why a court of equity should grant relief, as in any other case of part performance of a parol contract for the sale of land or any interest therein, i. e., to prevent fraud. ”
But, as already intimated, the law courts have not, by any means, in all instances, or even very generally, contented themselves with referring parties to the equity tribunals for relief in eases involving a breach of faith on the part of the licensor, and consequent irreparable damage to the licensee. A number of our American law courtshaveseized upon and adopted the doctrine of equitable estoppel, by which theyhave been enabled to administer relief indirectly in cases which otherwise would not lie within thescope of their powers. Ricker v. Kelly, 1 Me. 117; Clement v. Durgin, 5 Me. 9; Ameriscoggin Bridge v. Bragg, 11 N. H. 102; Woodbury v. Parshley, 7 N. H. 237; Sheffield v. Collier, 3 Ga. 82; Wilson v. Chalfant, 15 Ohio, 247; Snowden v. Wilas, 19 Ind. 10. And, where the law courts have not gone so far as to adopt the doctrine of equitableestoppel in such cases, they have very generally established the doctrine that buildings may, by permission of the owners of the soil, be erected thereon without becoming part of theinheritance; and that the person erecting them, when excluded from their possession and use, should havesome remedy, that he should not lose the product of his labor entirely. “The existence of a right of property in a building', apart from the title to the soil, necessarily involves the conclusion that (he person in whom it is vested may remove the building if he is obliged to surrender possession of theland. It has consequently been decided that a house or shop ereeted-on the land of another under a license which is subsequently withdrawn may be removed by theper-son who put it up, (Doty v. Gorham, 5 Pick. 487; Wells v. Banister, 4 Mass. 514; Fuller v. Tabor, 39 Me. 519;) or its value recovered in trover, if the owner of the soil forbids or prevents its removal, (Russell v. Richards, 10 Me. 429, 11 Me. 371; Osgood v. Howard, 6 Greenl. 452.)”
But the true field for the administration of justice in such cases is in equity. We have already given the dictum of Judge Redfield upon the subject under consideration, which he put in a note to Hall v. Chaffee, supra, an action at law. That
In the state of New York the case of Mumford v. Whitney, supra, speaks the language of her law courts. The following very complete and accurate syllabus of a suit in chancery gives, in brief, the language of her courts of equity. “Bill for specific performanceof an agreement to sell or lease land. The' appellants had entered upon the land under an assignment of a license given by the respondent to occupy and improve the land. They afterwards surrendered that license to the respondent, who gave them a written memorandum authorizing them to possess the land, and promising to give them the preference to purchase or lease the land. It was proved that at various times the respondent had encouraged the appellants to improve and build on the land, by assurances that no advantage should be taken of their labor, and that when his title was perfected, by a partition of the land, they should have a lease in fee, or a deed at the rate wild lands were selling. The respondent in his answer denied any other agreement than the memorandum, and relied on the statute of frauds. It was held that, the appellants having gone on the land and made improvements, this was a part performance, and took the case out of the statute; that, although the memorandum was itself uncertain, yet, as a part performance was made the basis of the claim to a specific execution of the agreement, parol evidence might be connected with the memorandum for the purpose of making out the contract; and, there being satisfactory evidence of an agreement, independently of the memorandum, and the conduct of the respondent being a fraud on the appellants, a specific performance was decreed.” Parkhurst v. Van Cortlandt, 14 Johns. 15.
It is said that the'fact that a promise has been made and never performed is not evidence of fraud, but the rule has its exceptions. Judge Cooley says: “If deceit, in order to be actionable, must relate to existing or past facts, it is evident that the fact that a promise made in the course of negotiations is never performed is not, of itself, either a fraud or the evidence of a fraud. Nevertheless, a promise is sometimes the very device resorted to for the purpose of accomplishing the fraud, and the most apt and effectual means to that end. Such is the case already mentioned, of the purchase of goods with the intention not to pay for them, it is the fraudulent promise that accomplished the wrong. So, if one promises to take up incumbrances on the title of another, and by means of the promise throws the prom-isee off his guard while he secures the title for himself, it would be a singular defense for him to make that he had only failed to perform his promise. The promise was
We do not overlook the fact that a labored argument has been made in the case at bar against the doctrine that part performance of a parol contract for the sale of real estate takes it out of the operation of the statute of frauds. Especial force is laid upon the words of our statute declaring such contracts void. We had supposed this notto be an open question. We will not attempt to review the authorities upon the question. This has been done too often by our ablest jurists. But in recognition of the elaborate argument of counsel we will give the conclusions arrived at by two of our American commentators, whose works are standard authorities in all our courts. We quote first from Story, Eq. Jur.: “Sec. 759. In the next place, courts of equity will enforce specific performance of a contract where the parol agreement has been partly carried into execution.” “Sec. 761. But a more general ground, and that which ought to be the governing rule in cases of this sort, is that nothing is to be considered a part performance which does not put the party in a situation which is a fraud upon him unless the agreement is fully performed. Thus, for instance, if upon a parol agreement a man is admitted into possession, he is made a trespasser, and is liable to answer as a trespasser if there be no agreement valid inlaw or equity. Now, for the purpose of defending himself against a charge as a trespasser and a suit to account for the profits in such a case, the evidence of a parol agreement would seem to be admissible for his protection: and, if admissible for such a purpose, there seems to be no reason why it should not be admissible throughout. A case still more cogent might be jxut where a vendee, upon a pa-rol agreement for a sale of land, should proceed to build a house on the land in the confidence of a due completion of the contract. In such case thex-e would be a manifest fraud upon the party in permit? ting the vendor to escape from a due and strict fulfillment of such agreement. Such a case is certainly distinguishable from
It is sufficiently apparent, without rehearsing what has gone before or citing additional authorities, that the ground upon which equity exempts a partly executed parol contract for the sale of realty from the operation of the statute of frauds, and decrees the execution of the contract, is simply fraud. It is said the objectofthe statute is to prevent fraud, and equity will not allow it to be made the instrument of fraud. When so understood and limited, the rule is a salutary one. Story says, in the case of a vendee of land by parol building a house upon it in faith of the completion of the contract, there would be manifest fraud in permitting the vendor to escape from a due and strict fulfillment of the agreement. Pomeroy says it would be a virtual fraud for the defendant, after permitting the acts of performance, to interpose the statute as a bar to the plaintiff’s remedial rights. But suppose the owner of the land, without going so far as to make a complete contract, specific in all its material terms, so as to be capable of definite proof and of enforcement, should stop short of that, but should by other inducements influence persons to invest money and labor on his lands, with a positive assurance that their possession should not be interfered with, and that they should eventually receive titles covering their improve' ments, and that he should stand by and permit and continue to encourage these investments in execution of the permission he had given them to erect improvements and make their homes upon his land. If he should then revoke their license, bring ejectment to expel them from the homes they had built, and interpose the statute of fraudsin bar of all relief to them, would his conduct be less a fx-aud in this case than in the other? The Pennsylvania courts say it would be the same, and that a mere license for the occupation or use of real estate will entitle the persons who have incurred considerable expense in execution of such license to relief in equity as fairly and fully as part performance of a parol contract for the sale of real estate entitles the vendees to such relief. The case of Rerick v. Kern, 14 Serg. & R. 267, decided in 1826, citing and approving the prior case of Le Fevre v. Le Fevre, 4 Serg. & R. 241, goes to the full extent of declaring such executed license an agreement on valuable consideration. Tt should be observed that Pennsylvania had no chancery courts, but administered equitable relief in the common-law actions, and through the common-law forms. Rerick v. Keim was an action on the,case for diverting water from a stream, thereby injuring plaintiff’s mill. The water had been taken from its natural channel, and turned into this stream leading to plaintiff’s mill by a structure erected on land of defendant under a license from him. He afterwards removed this structure, so as to allow the water to return to its old channel. Plaintiff had erected amill on the faith of the authority to so divei’t and use this water, and tlie loss of it would render his mill unserviceable during a considerable portion of the year. . Plaintiff contended that under these circumstances the license was irrevocable. Defendant contended that a mere license is revocable
We have quoted at considerable length from the above case, because it discusses and decides so many important points so briefly and so cleai'ly, obviating the necessity of a restatement of the points decided or of the doctrine of the case. It is well to observe, however, that the case is not a suit for specific performance, but an action on the case for damages. The license to divert the water on the land of defendant, and to maintain a structure there for the purpose, followed by large expenditure on the faith of such license, is declared to be an agreement on valuable
It is said that equity follows the law, which is true. But equity has a scope of its ownfor giving relief, especially against aetualoreonstruetivefraud, which thelaw cannot give; otherwise there would he no such thing as equity jurisdiction distinct from the law. When the law says that a parol contract for the sale of land conveys no estate under the statute of frauds, equity does not deny it; but when, by virtue of such contract, the vendee has been put in possession of the land, induced to make valuable improvements thereon, of which he would be defrauded and robbed by excluding him from the possession, and where a judgment for damages would not afford adequate relief, equity steps in and says the vendor shall not accomplish this fraud by enforcing his legal title at law in ejectment,hut that he shall make a deed of the land, conveying an estate in accordance with the terms of the parol contract. When the law says that a parol license cannot give the licensee a permanent interest, easement, or estate in land, equity will not deny it; hut when by virtue of such license the licensee has been putin possession, and induced to put valuable improvements on the laDd, of which he would be defrauded and robbed by a revocation of the license and ejectment by The holder of the legal title, equity will interpose, and either forbid the licensor to revoke the license, or impose such terms as will avoid the fraud, and accomplish what justice and good consciencedemand. The supreme court of Wisconsin states the doctrine in this way: “Most of the American courts have been satisfied with determining that a party who has induced the incorporation of the property of another with his own, through the means of a promise not to interfere with its use or enjoyment by the latter, shall not be allowed to commit the fraud of appropriating it to his own purpose, although he may withdraw the right to use it in the manner originally contemplated, and compel the other party to resort for redress to an action.” And, again; “In cases, however, where money has been expended, or improvements made and buildings erected on the faith of a parol license, which has been thus executed, courts of equity have generally interposed, at all events, so far as to restrain the licensor from appropriating to his own use and benefit the labor expended and improvements made on the faith of such license, without placing the licensee in the same situation in which he stood before he entered upon its execution.” Hazelton v. Putnam, 3 Pin. 107. “There is no rule more necessary to enforce good faith than that which compels a person to abstain from enforcing claims which he has induced others to suppose he would not rely on. The rule does not rest upon the assumption that he has obtained any personal gain or advantage, but on the fact that he has induced anotherto act in such a manner that he will be seriously prejudiced if hé be allowed to fail in carrying out what he has encouraged them to expect.” Faxton v. Faxon, 28 Mich. 159; Harkness v. Toulmin, 25 Mich. 80; Truesdail v. Ward, 24 Mich. 117. “If a party having a right stands by and sees another dealing with the property in a manner inconsistent with that right, and makes no abjection while the act is in progress, he cannot afterwards complain.” Leeds v. Amherst, 2 Phil. Ch. 123, cited in Faxton v. Faxon, supra. “The same ideas are enunciated in various forms by many authorities, both English and American ; among others see Gregg v. Von Phul, 1 Wall.274; Swan v. Seamens, 9 Wall. 254; Skinner v. Dayton, 19 Johns. 513-561; Raw v. Pote, 2 Vern. 239; Thompson v. Blanchard, 4 N. Y. 303; Parrott v. Palmer, 3 Mylne & K. 632, ” — cited in Faxton v. Faxon, supra. In Rhode Island it is held that an executed parol license will not be held irrevocable in a court of law, but that equity will give appropriate relief. Foster v. Browning, 4 R. I.53. Georgia holds that a parol license to enjoy an interest in lands is void at law, but where lai’ge investments have been made on the faith of the license for the enjoyment of the interest, equity will decree specific perform-
There is one proposition in regard to which there is no conflict. All authorities —case law and text-book law — agree that it is the proper province of equity to give \ relief in case of fraud, whether the fraud ^ be actual or constructive, intentional or non-intentional. It would be rash to attempt to give a perfect definition of fraud. Many eminent jurists have attempted it. None have succeeded. The best definitions given admit of so many exceptions as to greatly impair their usefulness in judicial discussion. The only safe way seems to be to define, or rather describe, the fraud suspected to exist in any given case, by comparison with similar cases selected from the Reports. Of all the attempted definitions to be found it seems that none are more satisfactory or instructive than merely to say that fraud is unfair dealing; and when, through inducements held out by one person, even only by means of a promise, by which another person is influenced to change his position so that he cannot be placed iu . statu quo, and will be seriously damaged unless the promise is fulfilled, then the refusal to perform is fraud. Any transaction that outrages our sense of justice or shocks the conscience of an honest man may well be viewed with suspicion, and scrutinized closely. It seems clear in the case of Parkhurst v. Van Cortlandt, supra, that the court was right in pronouncing the conduct of the defendant a fraud upon plaintiffs. Defendant had given permission to plaintiffs to go on his wild land,— to “possess” it, — and promised them that as soon as he could perfect his own title he would secure them in the permanent occupation of the land by a sale to them, ora permanent lease. He thus induced them to expend money and labor and make homes there. He afterwards attempted to revoke their license, repudiated his promise, and brought ejectment against them on his legal title. Plaintiffs then brought their bill in chancery for an injunction and for specific, performance. The case is very similar to the case at bar. The court was right in exercising its equity powers and taking jurisdiction on the ground of fraud. The defendant had simply enticed plaintiffs onto his ground, and entrapped them there with the tempting bait of a favorable location to build homes on easy terms, and was endeavoring to shear them likesheep, and drive them off with his writ of ejectment. It was unconscionable that his scheme should be allowed to succeed. It made it no better that he relied upon his legal title, and appealed to the rigid rules of the common law and her courts to aid him. To grant such aid would have been to outrage justice in her temple through the instrumentality of her own chosen ministers. In fact.it was admitted on all h an ds th at it was a pr o per su bj ect f or the interposition of equity. The only contention was whether the relief should be compensation or specific performance. A majority of the court decided in favor of specific performance. Russell v. Hubbard, 59 Ill. 335, was a case of a party-wall. One Harman owned the wall, and it was built to the north line of his lot. One Furry was about 'to build a Ira me house on the adjoining lot. Harman induced him to build of brick, giving him the use of the north wall of his (Harman’s) house as the south wall of his (Furry’s) house on condition that he would build a brick building. He did so. The court says: “By virtue of this agreement and the erection of the building equitable rights were acquired. Though the license to use the wall might
Verling II. Hart perpetrated no fraud. He treated the settlers on his land by his permission as rightfully there. Juliet W. Hart committed no fraud. She also treated the settlers on the town-site of Buffalo as rightfully there, even to the extent of extending their license to occupy, improve, and hold lots, which expired with Verling K. Hart on Eebruary 17, 1X88, to the 23d of the following August. A license to hold and enjoy realty may be made as effectual by- subsequent ratification as by precedent authority. Her conduct was such as to recognize and acknowledge the rights of the settlors under the license given them by Verling K. Hart, at least to the extent that they were not trespassers, and that their improvements were their own. This was a substantial ratification of their license. Her present attitude of seeking to evade or annul this license, as to complainant, is not voluntarily assumed. It is in a measure forced onherbythecomplainant’s own acts. His conduct is not such as to commend him to the favorable consideration of a court of equity. It cannot be supposed that Ver-ling K. Hart, in assuring1 the settlers that they should have the land improved by them, could mean more in regard to lots on a business street than one lot to a building, included within the limits of the lot, or sufficient front to clear their build-
The proper measure of relief in such cases is a matter in which there is much diversity of opinion. The Pennsylvania courts .go to the ex tent of holding a parol license, ■executed in whole or in part, at large expense, an agreement on valuable consideration, and hold it irrevocable, and enforce it according to its scope, meaning, ■ and intent. On the other extreme, a few cases can be found refusing any relief whatever. In this regard, as in others, ■each case must stand upon its own facts ■ and circumstances. Equity has ample power to mould a decree that will accomplish substantial justice. To determine what substantial justice requires we must take into consideration all the facts and circumstances of this particular case. Cases almost without limit can be found announcing in general terms rules apparently applicable, but when the facts of such cases are examined few can be found that are parallel to the case at bar. As already explained, the terms of the license in this instance were too incomplete in several particulars to constitute a contract capable of specific performance in equity. But the terms and the true intent of that license, so far as they can be ascertained, are controlling considerations in determining the equities of the parties. The license by Verling K. Hart was given before any survey or platting of the town,— before the location, size, and shape of blocks and lots had been determined. Wo have already intimated the view that all that settlers are equitably entitled to under that license, on business streets, is sufficient front to clear their buildings, and the depth of a lot back. This is a liberal construction in favor of the settlers. Fischer’s understanding of Hart’s inducement to settlers, and which he was authorized to make public as far as the railroad, was that mechanics and good people locating and making improvements on the town-site should have each a lot at small expense, — as he understood it, the expense of recording. The size of town lots had not then been determined. A fair construction of this is that it means, as applied to business streets, the front and depth back already indicated. This is defendant’s construction. The written instrument of September 20,1883, would indicate such intent; but that,being aprop-osition to settle all controversies, is not conclusive. Wiien complainant was building on lot No. 2, as Wood thinks, but at work on lot No. 1, as he thinks himself, and when Wood was making a preliminary survey for defendant, Wood and complainant had a conversation in regard to the matter. Complainant says that Wood was defendant’s agent. Wood says he was not, but states that he platted the town-site, and had been assisting Mrs. Hart, defendant, in making sales and in advertising her business generally. He is her brother-in-law. It would seem from all the evidence that the building which Wood speaks of as about lot 2 actually extends over on lot 3. Wood’s recollection of this conversation and complainant’s do not agree. It is not very material what the conversation was. It is materia], however, that then, or soon after, the erection of the building mentioned was going on, and neither then nor afterwards was it objected to by defendant herself, or by Wood for her, although they both lived within 300 or 400 feet of the place, and defendant as w7e)l as Wood must have known of the erection of the building. It is also questionable whether, under the circumstances, plaintiff had not a right to rely on Wood’s admitted statement to him that Mrs. Hart would not probably interfere with his building unless in the way of platting the town, and to expect that, if she did object, Wood would ascertain the fact, and inform him of it. This much would seem to come within the scope of Wood’s employment, as stated by himself. No intimation ever reached complainant to the effect .that it was desired he should not proceed, The circumstances would rather seem to corroborate complainant’s understanding that defendant would he glad to have such a building erected. He says, at the
When this cause' was tried below no question of rents and profits was in issue. At the time the evidence was taken, the cause argued and submitted, and the opinion of the chancellor filed, indicating what the decree would be, there was positively nothing in the pleadings as to any rental values. The answer concluded with a general charge that complainant had derived great benefit and emolument from the use of said premises, etc., — a statement too indefinite for a ground of judgment, and on w’hich no judgment was asked. The cross-bill attempted to raise the question. It is proper, and probably necessary, that we now give our views upon that question for the guidance of the court below, as it is likely to be considered in the future progress of the case, and is included in the decree. This seems to be simply and clearly a case where the property of complainant has been incorporated with that of defendant with the consent and permission of defendant and her predecessor in interest, and that the property on both sides was real estate, and that of complainantsuch as usually becomes part of the inheritance; that this was done under a parol license,now executed at. large expense by complainant, which license was in the nature of an agreement for the future saleand conveyance to complainant of the land of defendant upon which complainant’s part of the property, consisting of valuable buildings, was placed and erected; that this license, although in the nature of such agreement, and now’ executed on the part of complainant, is incomplete in some of the material terms necessary to constitute a contract, and cannot be specifically enforced as such; that it was not coutempiated, either by licensee or licensors, that any rent, either ground-rent or other rent, should ever be charged against the licensee, but rather that he was considered the equitable owner of the land upon which he erected his buildings, and entitled to the legal title ás soon as practicable, at a small charge, probably intended merely to cover incidental expenses. Dnder these cireumstanees, while-we cannot give complainant thelegal title to the land, we do not think it equitable that he should pay rent for it.
The case of King’s Heirs v. Thompson, 9 Pet. 201, decided by the supreme court of the United States in 1835, seems to have stood unchallenged as authority up to the present time. It was not exactly similar in all its facts to the case at bar, but seems precisely analogous in most of the legal and equitable principles involved. The case will be found to be in harmony with a number of those already cited, and it is believed in conflict with very few anywhere. It was a bill in chancery, praying for a decree for the legal title of the realty involved, or, if that could not be decreed, that the property might stand charged with the amount of repairs and improvements expended on it. The complainants, Josiah Thompson and Elizabeth, his wife, were married in 1812. A few days after the marriage, George King, Elizabeth Thompson’s father, being then in good circumstances, proposed to Josiah Thompson to give him a house and lot, then much out of repair, if he would repair it so as to make it a comfortable residence, stating at the same time that he intended the property for his daughter, complainant’s wife. Complainant accepted the property, and expended upon it over $4,-000. On April 17, 1816, King wrote to complainant that in order to remove any suspense in regard to the property on which complainant then lived he held himself bound to give a deed to a trustee, who shall hold it in trust for the complainant and wife during their lives, etc. Complainant answered April 26th, declining the proposition and suggested (1) that
The decree of the court below is incon.-
This cause should be retried upon the theory that both complainant and defendant have a valid interest in the realty in controversy, and that complainant’s possession of that portion of the ground occupied by his improvements is and has been rightful, and that he is liable for no rent for the same; but that the ground itself belongs to defendant. The value of the property, including the ground so occupied by complainant’s improvements, and the improvements, should be ascertained, and the value of the ground and the improvements separately, and a decree ■should be made allowing complainant the present value of his improvements, and malting It a lien upon the property. Then, unless defendant elect to discharge the lien by paying the amount into court for the use of complainant, the property' should be sold as on execution, and the proceeds divided between complainant and defendant in the proportion of the value of their rjjs>-ective interests. Defendant having tendered to complainant, before the commencement of the litigation of the interests in controversy, all that he was equitably entitled to, and behaving refused the tender, and his conduct in other respects having been arbitrary and reckless of the rights of others, he should pay all costs of this suit and of the two actions of ejectment mentioned in the pleadings herein; and the amount should be made a lien on his interest in the realty involved, and on the money paid into court to his use in lieu thereof, if such payment should be made; and an order of injunction should issue, enjoining defendant’s prosecution of her said two actions of ejectment until complainant receives compensation for his improvements, or until the money be paid into court.
Dissenting Opinion
(dissenting’.) While I concur with the majority of the court as to the equities of the case at bar, I dissent from that part of the opinion and judgment which settles the relief to be given to the complainant. The elaborate and learned opinion of my Brother Conaway establishes to my mind that the doctrines of license and equitable estoppel must be applied to the determination of this case, and that the cornplainantis entitled to relief under these well-known equitable doctrines. The rule is clear that, if the owner of an estate stands by and suffers another, who supposes himself to be. entitled to certain lands, to go thereon and make improvements and expend money there,— particularly if this is done by the invitation of the owner, under promise of title, — ■ a court of equity will compel such owner, when he afterwards seeks to assert his title, to indemnify the one who made the expenditure, by making pecuniary compensation; and in such case, if the owner resorts to a court of la w and brings an action of ejectment, a court of equity, at the suit of the party making the expenditure, will work out the equitable principle by restraining the ejectment suit until compensation is made. 1 Pom. Eq. Jur-
Rehearing
ON REHEARING.
(April 19,1893.)
Appellee bases her argument in favor of her motion for a rehearing partly upon the ground that the decision of this court gives to appellant relief for which he did not ask. Such is not the fact. All other, matters presented in argument on this motion have been sufficiently considered in the opinion delivered in the case. Rehearing denied.
Adhering to the views expressed by mein this case, I think that a rehearing should have been granted, on the ground that the judgment of this courtis too broad, and that the relief given to the appellant is not warranted by the evidence. He should not be allowed for the present value of his improvements, but the value thereof from the time of demand for the premises, with legal interest from that date, from the amount of which should be deducted the rents, issues, and profits of the premises from that date.
ON MOTION TO DISMISS APPEAL.
(May 23, 1892.)
After the argument and decision of this cause, and the denial of a motion for rehearing, a motion to dismiss the appeal is made on the ground thatthe decree appealed from is not a final decree, and the appeal is therefore premature. The cases cited in support of this motion do not show that such a motion is permissible at this stage of the proceedings. Many well-considered eases hold to the contrary. The decree appealed from was for the surrender of the realty in controversy, and all improvements thereon, to appellee, and for the rents, issues, and profits from September 5, 1835, and directing a reference to the master commissioner to take and report testimony as to the value of each separate piece of property adjudged to be the property of defendant, appellee here, from that time until the making of such report. It is claimed that the decree is not final until this amount is ascertained, and put in the form of a decree. This court finds that the decree as made is erroneous, and must be reversed. The effect of the motion, if sustained, is to send the cause back to the trial court, to enable it to ascertain the amount of rents, issues, and profits, to which no one is entitled. The court will not do a vain thing. Motion denied.