Tate v. Field. ceeds received by the late duke, his father, in his lifetime, and it was held that he was entitled to an account. Afterward an accounting was had before a master, who made a report, finding a large sum of money-£42,000-due from the estate of the late duke to the present duke. Exceptions to that report came on for hearing before Sir Lancelot Shadwell, master of the rolls, in 1850, and is reported out of place by Mr. Beavan in the twentieth volume of his reports, page 239. Owing to the great length of time which had elapsed since the waste was committed and the fact that no separate account of the proceeds had been kept by the late duke, it was impossible for the master to resort to any reliable data to make up an account, and the amount as found was the result, in a great measure, of conjecture. On that subject Sir Lancelot Shadwell (at p. 242) said: "I take it that the general wisdom of mankind has acquiesced in this-that the author of a mischief is not the party who is to complain of the result of it, but that he who has done it must submit to have the effects of it recoil upon himself." He then goes into an elaborate examination of the law upon the subject, repeating (at p. 246) what he had previously stated as the rule; and he sustained the master's report on the ground, in substance, that it was the duty of the master to make it large enough to cover the possible profits which the late duke has made from the sale of the materials of the house, the profits actually realized being the basis upon which the original reference had been granted, as appears by an examination of the reports in 14 Sim, and 2 Phil. Ch. The same rule was laid down by Sir John Romilly, master of the rolls, in Lushington v. Boldero, 15 Beav. 1. There a party, tenant for life, without impeachment of waste, committed what is called "equitable waste" by cutting down ornamental timber, and the court compelled him to pay into court the amount for which the timber was sold, and that amount having been in court some time, the question arose as to whether or not the tenant for life who committed the waste was entitled to the interest upon it, or whether that interest should accumulate for the benefit of the reversioner, and the master of the rolls (at p. 5) Tate v. Field. says: "The equitable doctrine applicable to this and other similar cases is this, that no person shall obtain any advantage by his own wrong." And again (at p. 7): "When, however, the tenant for life has committed the wrongful act which produces the fund, the court will not allow him to gain any benefit from it; but the reversioner takes the benefit arising from an accretion of the fund, in lieu of the accretion of the timber." And he gave the interest to the reversioner instead of to the tenant for life. The same doctrine was again asserted by Lord Romilly, in Bagot v. Bagot, 9 Jur. (N. S.) 1022. That was a case of both timber and minerals, and (at p. 1024) the master of the rolls reiterated the doctrine that a tenant for life could not derive any benefit from timber cut by him knowingly and willfully, and says that, "reviewing the authorities, I still retain that opinion." The question was whether the tenant for life was entitled to interest on the proceeds of timber and minerals improperly cut and won, and it was held that he was chargeable with interest, and was not entitled to the use of it during his lifetime. In the case of Morris v. Morris, 3 De G. & J. 323, LordJustice Knight Bruce, in delivering judgment, said: “If it had been shown, or were in any degree likely, that any part of the materials of the old house had been sold, probably, notwithstanding the much larger expenditure on the construction of the new mansion-house, the assets of the second baronet would have been held liable to account." And Lord-Justice Turner (at p. 328) said: "The principle upon which the court proceeds in these cases is that the tenant for life of an estate is liable to account in equity for profit derived by him from an improper user of his legal powers, in committing equitable waste." In Seagram v. Knight, L. R. 2 Ch. App. Cas. 628 (1866), the head-note is this: "If a tenant for life, impeachable for waste, cuts timber without the leave of the court, he will never be permitted to derive any advantage from his wrongful act." And Lord Chelmsford (at p. 632) says: "But whatever may be the course adopted by the court where a tenant for life, impeachable for waste, obtains its leave to cut down timber, I entertain no Tate v. Field. doubt that if he takes upon himself to cut and sell timber without authority, he does it at his peril, and he can never be permitted to derive any advantage from his wrongful act," referring to Williams v. Duke of Bolton, 3 P. Wms. 268, note. And in the much-discussed and thoroughly-considered case of Jegon v. Vivian, L. R. 6 Ch. App. Cas. 742 (1871), the same doctrine is announced. Lord Hatherley, in delivering judgment (at p. 761) says: "This court never allows a man to make profit by a wrong." The question there was whether coal wrongfully but innocently taken should be charged for at the value in situ, or at the value after it had been separated, "won" or "hewn," as it is called, and he held in that case that what is called "the milder rule" should be applied. The more severe rule, as is well known, was laid down in Martin v. Porter, 5 M. & W. 351, and is still the law in England in all cases except where there was no intentional wrongdoing. Phillips v. Homfray, L. R. 6 Ch. App. Cas. 770; Llynvi Coal Co. v. Brogden, L. R. 11 Eq. 188. The case of Duke of Leeds v. Lord Amherst, supra, is the only one which I can find at all parallel to the present one in respect to the uncertainty and speculative character of the value of the materials taken and the profits derived. And in this case the defendants are responsible for that uncertainty, because it was in their power to show what profit they actually derived. Not having done so, they are justly subjected to the rule that all presumptions are against the wrongdoer. Most of the English cases arose from the cutting of timber and the removal of minerals, and they generally present a very easy mode of ascertaining the actual profit derived by the wrongdoer. In the case of either timber or coal there is a well-known market value, and deducting from that the cost of removing it from the stump or the mine leaves the value of the timber standing in the ground, and the ore in situ; and the well-settled rule, as we have seen, is not to allow the wrongdoer the cost of cutting down the timber or of hewing or breaking loose the ore or mineral, but to ascertain its value in the manner just stated after the timber has been cut down and the mineral loosened from its Tate v. Field. site, the rule being not to give the owner of the mineral or timber any benefit from the skill or labor bestowed upon it by the wrongdoer except the cost of separation. This was the principle adopted in the case of Whorton v. Webster, 56 Wis. 356, cited by counsel for defendants. That was a case of cutting timber, between mortgagee and mortgagor, and the timber was capable of an exact valuation on the stump. The principle of the decision is contained in these words: "He [the mortgagee] cannot, in this proceeding, appropriate the labor and skill of the Whartons [the wrongdoers] to the payment of his mortgage." The principle contended for by the defendants is that the complainant is entitled to recover only the actual depreciation in the value of the premises by the removal of the building, and that is shown by the evidence to be trifling. But I am unable to give my approval to such a doctrine. It would lead to this-that a man might have on his premises some fixture or object-building, or rock, or tree-which was of no kind of value to him, but which could be sold by his neighbor for a particular purpose and made very valuable, and that the neighbor might commit a trespass, go upon the premises, remove the object and make a large gain out of it by paying nominal damages to the owner. In the case in hand the mortgagor was entitled to the benefit of every chance that the building on the mortgaged premises might be, some time in the future, of great value. The original cost was $1,106, besides the painting, a matter of $40 or $50, and the tarred-paper roof probably as much more, amounting in all to fearly or quite $1,200. The owner of the building thought it worth while to spend that amount of money upon it. If the factory in the neighborhood should ever again be operated the building might again be valuable, or the owner had a right to enjoy his opportunity to sell the materials to some person, who, some day in the future, might possibly need them. He has been deprived of the benefit of these chances, and the defendants are chargeable, under the circumstances, with having derived a large benefit from their wrong. And for these reasons, in the Geishaker v. Pancoast. absence of any evidence on their part as to what benefit they actually did derive from the building, I think that they must be charged with the highest value which the proofs will reasonably warrant, not exceeding, of course, the amount of the deficiency. The proofs taken at the first hearing show that the building was removed about the 1st of December, 1894 (the complainant was a non-resident, and had no notice of it until some time afterwards); and I think that I am safe in adjudging that the materials were worth to the defendants at least $400, and that they should be charged with interest on that amount from the 1st of December, 1894, or say $80, making a total of $480. I will advise a decree that the defendants are jointly and severally liable to pay, and do pay forthwith to the complainant, the sum of $480, together with the costs of this suit. ADELAIDE V. GEISHAKER and husband, and ALFARETTA E. 2". DAVID J. PANCOAST, GLADYS W. FILLEBROWN and husband, [Decided April 27th, 1898. Filed January 4th, 1899.] 1. One purchasing at an execution sale does not acquire an interest to which he knew one not an execution defendant was equitably entitled. 2. A lis pendens merely disclosing an interest held by complainants will not give a purchaser constructive notice of an interest of another disclosed by complainants' bill, which is referred to by the lis pendens. 3. Defendants purchased under foreclosure, knowing that complainants were equitably entitled to a certain undivided interest in the land. When the mortgage was executed the mortgagee had no notice of complainants' interest.— Held, that complainants were entitled to an order of sale permitting them to redeem their interest in the land by paying whatever deficiency there might be due on the mortgage after sale of the interest which the mortgagor owned. |