By the Court :
The defendants contend that on the face of the complaint this is not an action for specific performance, but an action at law on an alleged legal title for the recovery of the land. We are of opinion, however, that though the complaint is obnox-. ious to criticism, it sufficiently appears on the face of it that the action is for the specific performance of a contract for the conveyance of land. There was no special demurrer on the ground of ambiguity.
Both parties claim under the six heirs of Arguello, who are conceded to have been the owners in fee, and the title of the plaintiff, as stated in the complaint, is deraigned through, 1st, a power of attorney not under seal, from the six Arguellos to Camarena, with a power of substitution; 2nd, a substitution by Camarena of Splivalo, under the power; 3rd, a deed, absolute •in form, from the six Arguellos by Splivalo as attorney in fact, to Aguayo, for the consideration of five thousand dollars; 4th, a subsequent deed from Aguayo to the plaintiff for the consideration of five thousand dollars, which the complaint avers [338]*338was paid by the plaintiff to Aguayo at the time of the execution of the deed. It is contended by the defendants that the power of attorney is invalid for want of a sufficient delivery; and it appeared in evidence that the instrument was executed in the Eepublic of Mexico, before a Notary Public, in the usual manner prevailing in that country; that the power was written by the Notary in his official book kept for that purpose, was duly signed and acknowledged by the parties and duly certified by the Notary, in the form required by our statute; and as the original was written and signed in the official book, and for that reason could not, in a literal sense, be delivered to the attorney, a copy duly certified by the Notary was delivered to the attorney named in the power. We are of opinion that in contemplation of law these facts constituted a sufficient delivery.
But it appeared on the face of the power of attorney that one of the persons who signed it was a married woman, and the husband did not unite in the execution of the power. As our statute then stood, a married woman could not make a valid power of attorney to convey her separate real estate, unless her husband united in the execution of it, and as to this woman, the power of attorney was inoperative, and conferred no authority to dispose of her interest in the land.
The power of attorney to Splivalo was not under seal, and, under the then existing statutes of this State, was insufficient to enable the attorney to convey the legal title, but, on well-settled principles, was operative to enable him to enter into a valid contract of sale. By reason of this defect in the power of attorney, the deed to Aguayo did not pass the legal title, but in a Court of Equity will be deemed a contract of sale, entitling the vendee to a conveyance of the legal title. The deed from Aguayo to the plaintiff operated in law as an assignment of the equitable title held by the former, under the deed of January 2nd, 1867.
The complaint avers, as already stated, that when the plaintiff took the conveyance from Aguayo, he paid him, as the consideration therefor, the sum of five thousand dollars. The Court does not, in terms, find this fact. But it finds that Splivalo then [339]*339had in his hands two thousand two hundred and fifty dollars, before that time paid to him by the plaintiff under the contract of May 10th, 1866; and that when the plaintiff received the deed from Aguayo, he paid to Splivalo the further sum of two thousand seven hundred anil fifty dollars, and thereupon, then and there, Splivalo paid to Aguayo the sum of five thousand dollars. It was all one transaction, and in legal effect it Avas a payment by the plaintiff to Aguayo, through Splivalo, who then had in his hands two thousand two hundred and fifty dollars of the plaintiff’s money, and to whom the plaintiff then paid the further sum of two thousand seven hundred and fifty dollars, making in the aggregate the sum of five thousand dollars, the whole amount agreed to be paid. In his testimony, Splivalo thus explains the transaction: “ Instead of my returning the two thousand two hundred and fifty dollars to Jolm Heinlen, and he making the payment to Aguayo, I paid Aguayo directly, and Heinlen paid me the balance of two thousand seven hundred and fifty dollars; it was all done at one and the same moment at my office.” In the light of this testimony, (which is uncontradicted) there can be no doubt that, in legal effect, it was a payment of five thousand dollars by the plaintiff to Aguayo.
It has been suggested that the legal effect of this transaction was simply a rescission of the contract between Splivalo and Aguayo, and a performance of the contract of May 10th, 1866, between the plaintiff and Splivalo; and consequently that the plaintiff must stand on that contract alone, and acquired no new equity under the conveyance from Aguayo. On the contrary, it is clear, from the findings and proofs, that as between the plaintiff and Splivalo, the transaction with Aguayo was practically an abandonment of the contract of May 10th, 1866 ; and as a substitute therefor the plaintiff accepted the conveyance from Aguayo, and paid him the full consideration, to wit, five thousand dollars. That the contract of May 10th, 1866, was abandoned is evident from the fact that Splivalo, with the plaintiffs’ consent, paid to Aguayo the two thousand two hundred and fifty dollars before then paid under the?,contract of May 10th, 1866. If, after the transaction with Aguayo, the plaintiff [340]*340had brought an action for the specific performance of the contract of May 10th, 1866, he must have failed on the ground that the contract was abandoned when he accepted the conveyance from Aguayo, and authorized Splivalo to pay to him the two thousand two hundred and fifty dollars before then paid under the contract. The contract was merged in the transaction with Aguayo, and thenceforth ceased to be obligatory on either of the parties to it. But the defendants contend that the finding to the effect that two thousand seven hundred and fifty dollars was paid by the plaintiffs to Splivalo on the 15th of March, 1867, was not justified by the evidence. We are, however, of opinion that there was evidence tending to support the finding, and that it ought not to be disturbed on this ground.
The defendants further insist that under the pleadings the contract of May 10th, 1866, was not admissible in evidence for any purpose. But, if for no other purpose, it was certainly admissible to prove the payment by the plaintiff of the two thousand two hundred and fifty dollars, and the circumstances under which it was made, and as explanatory of the transaction with Aguayo. It is for these purposes only that we have considered it.
The Court finds that the rights the defendants acquired from the Arguelles, if any, were acquired with full notice of the conveyance to Aguayo, and of the consideration paid by him, and before payment by them of any part of the purchase money. It results from these views, that from the findings, and without reference to the contract of May 10th, 1866, as a basis for equitable relief, the plaintiff is the equitable owner of five undivided sixths of the land in controversy, and is entitled to a conveyance by the defendants of the legal title thereto.
Free access — add to your briefcase to read the full text and ask questions with AI
By the Court :
The defendants contend that on the face of the complaint this is not an action for specific performance, but an action at law on an alleged legal title for the recovery of the land. We are of opinion, however, that though the complaint is obnox-. ious to criticism, it sufficiently appears on the face of it that the action is for the specific performance of a contract for the conveyance of land. There was no special demurrer on the ground of ambiguity.
Both parties claim under the six heirs of Arguello, who are conceded to have been the owners in fee, and the title of the plaintiff, as stated in the complaint, is deraigned through, 1st, a power of attorney not under seal, from the six Arguellos to Camarena, with a power of substitution; 2nd, a substitution by Camarena of Splivalo, under the power; 3rd, a deed, absolute •in form, from the six Arguellos by Splivalo as attorney in fact, to Aguayo, for the consideration of five thousand dollars; 4th, a subsequent deed from Aguayo to the plaintiff for the consideration of five thousand dollars, which the complaint avers [338]*338was paid by the plaintiff to Aguayo at the time of the execution of the deed. It is contended by the defendants that the power of attorney is invalid for want of a sufficient delivery; and it appeared in evidence that the instrument was executed in the Eepublic of Mexico, before a Notary Public, in the usual manner prevailing in that country; that the power was written by the Notary in his official book kept for that purpose, was duly signed and acknowledged by the parties and duly certified by the Notary, in the form required by our statute; and as the original was written and signed in the official book, and for that reason could not, in a literal sense, be delivered to the attorney, a copy duly certified by the Notary was delivered to the attorney named in the power. We are of opinion that in contemplation of law these facts constituted a sufficient delivery.
But it appeared on the face of the power of attorney that one of the persons who signed it was a married woman, and the husband did not unite in the execution of the power. As our statute then stood, a married woman could not make a valid power of attorney to convey her separate real estate, unless her husband united in the execution of it, and as to this woman, the power of attorney was inoperative, and conferred no authority to dispose of her interest in the land.
The power of attorney to Splivalo was not under seal, and, under the then existing statutes of this State, was insufficient to enable the attorney to convey the legal title, but, on well-settled principles, was operative to enable him to enter into a valid contract of sale. By reason of this defect in the power of attorney, the deed to Aguayo did not pass the legal title, but in a Court of Equity will be deemed a contract of sale, entitling the vendee to a conveyance of the legal title. The deed from Aguayo to the plaintiff operated in law as an assignment of the equitable title held by the former, under the deed of January 2nd, 1867.
The complaint avers, as already stated, that when the plaintiff took the conveyance from Aguayo, he paid him, as the consideration therefor, the sum of five thousand dollars. The Court does not, in terms, find this fact. But it finds that Splivalo then [339]*339had in his hands two thousand two hundred and fifty dollars, before that time paid to him by the plaintiff under the contract of May 10th, 1866; and that when the plaintiff received the deed from Aguayo, he paid to Splivalo the further sum of two thousand seven hundred anil fifty dollars, and thereupon, then and there, Splivalo paid to Aguayo the sum of five thousand dollars. It was all one transaction, and in legal effect it Avas a payment by the plaintiff to Aguayo, through Splivalo, who then had in his hands two thousand two hundred and fifty dollars of the plaintiff’s money, and to whom the plaintiff then paid the further sum of two thousand seven hundred and fifty dollars, making in the aggregate the sum of five thousand dollars, the whole amount agreed to be paid. In his testimony, Splivalo thus explains the transaction: “ Instead of my returning the two thousand two hundred and fifty dollars to Jolm Heinlen, and he making the payment to Aguayo, I paid Aguayo directly, and Heinlen paid me the balance of two thousand seven hundred and fifty dollars; it was all done at one and the same moment at my office.” In the light of this testimony, (which is uncontradicted) there can be no doubt that, in legal effect, it was a payment of five thousand dollars by the plaintiff to Aguayo.
It has been suggested that the legal effect of this transaction was simply a rescission of the contract between Splivalo and Aguayo, and a performance of the contract of May 10th, 1866, between the plaintiff and Splivalo; and consequently that the plaintiff must stand on that contract alone, and acquired no new equity under the conveyance from Aguayo. On the contrary, it is clear, from the findings and proofs, that as between the plaintiff and Splivalo, the transaction with Aguayo was practically an abandonment of the contract of May 10th, 1866 ; and as a substitute therefor the plaintiff accepted the conveyance from Aguayo, and paid him the full consideration, to wit, five thousand dollars. That the contract of May 10th, 1866, was abandoned is evident from the fact that Splivalo, with the plaintiffs’ consent, paid to Aguayo the two thousand two hundred and fifty dollars before then paid under the?,contract of May 10th, 1866. If, after the transaction with Aguayo, the plaintiff [340]*340had brought an action for the specific performance of the contract of May 10th, 1866, he must have failed on the ground that the contract was abandoned when he accepted the conveyance from Aguayo, and authorized Splivalo to pay to him the two thousand two hundred and fifty dollars before then paid under the contract. The contract was merged in the transaction with Aguayo, and thenceforth ceased to be obligatory on either of the parties to it. But the defendants contend that the finding to the effect that two thousand seven hundred and fifty dollars was paid by the plaintiffs to Splivalo on the 15th of March, 1867, was not justified by the evidence. We are, however, of opinion that there was evidence tending to support the finding, and that it ought not to be disturbed on this ground.
The defendants further insist that under the pleadings the contract of May 10th, 1866, was not admissible in evidence for any purpose. But, if for no other purpose, it was certainly admissible to prove the payment by the plaintiff of the two thousand two hundred and fifty dollars, and the circumstances under which it was made, and as explanatory of the transaction with Aguayo. It is for these purposes only that we have considered it.
The Court finds that the rights the defendants acquired from the Arguelles, if any, were acquired with full notice of the conveyance to Aguayo, and of the consideration paid by him, and before payment by them of any part of the purchase money. It results from these views, that from the findings, and without reference to the contract of May 10th, 1866, as a basis for equitable relief, the plaintiff is the equitable owner of five undivided sixths of the land in controversy, and is entitled to a conveyance by the defendants of the legal title thereto.
This brings us to the question whether the Court below erred in awarding to the plaintiff the rental value of the land during the time the defendants have occupied it- The argument for the defendants is, first, that even though the plaintiff be conceded to be the equitable owner, by virtue of his contract of purchase, he did not thereby become entitled to the possession, in the absence of an agreement to let him into the possession; and that, not being entitled to the possession, he cannot recover rents and [341]*341profits. Second, that the plaintiff made no demand for a conveyance prior to the commencement of the action.
In discussing this question, it will be borne in mind that, from the 15th of March, 1867, until the present time, the plaintiff has been, and yet is, the equitable owner of five undivided sixths of the land, the legal title to which has been, and yet is, held by the defendants, who are entitled to the remaining one undivided sixth. As to the five undivided sixths, the defendants have held the dry legal title as trustees for the plaintiff, and as the Court finds, have held the possession of the whole from November, 1868, excluding the plaintiff therefrom. They entered claiming the exclusive right to the possession, and in their answer deny the plaintiff’s title to any portion of the land, and assert an exclusive right in themselves from the time of the conveyance by the Arguellos to them, in the year 1867. They have forced the plaintiff to appeal to a Court of Equity to compel a conveyance of the legal title, and during the long interim which has elapsed have enjoyed the use of the land. When the plaintiff shall have acquired the legal title, he cannot maintain an action at law for mesne profits.
At common law the plaintiff in ejectment could not recover the mesne profits in the same action, but was compelled to establish his title or right to the possession by the judgment in ejectment, and might then prosecute his action of trespass for mesne profits, on the trial of which the judgment in ejectment would be conclusive evidence of his prior right to the possession, under a legal title, and of the ouster by the defendants. But the theory of the action for mesne profits was that the plaintiff had all the time held the legal title, and had been ousted by the defendant; and the rental value of the land while the plaintiff was deprived of the possession was awarded in the form of damages. But under our statute the mesne profits may be recovered in the action of. ejectment, which, however, can only be maintained on the legal title. If the plaintiff holds only the equitable title, and is forced to go into a Court of Equity to compel á conveyance of the legal title, it is well settled that he cannot afterwards maintain an action at law for the mesne profits, for the reasons already indicated; and if he [342]*342cannot recover rents and profits in the action in equity he is without remedy. But, fortunately, a Court of Equity will not permit so great a wrong, and will afford complete relief in such a case. “ If there is a trust estate, and the cestui que trust comes into equity upon his title to recover the estate, he will be decreed to have the further relief of an account of the rents and profits.” (1 Story, Eq. Jur. 512; 3 Atk. R. 124.)
We think thjs is the correct rule, and we find no authority to the contrary. It is in consonance with the general principle that a Court of Equity will do complete justice in a cause of which it has jurisdiction, and more particularly if there be no other ■remedy, to prevent a failure of justice. But the rule as stated by Story is, that the plaintiff is entitled to an account of the rents and profits; and the defendants contend that the rule applies only where the premises have been let at rent by the defendant, and where he has actually received rents as such, and has no application where the defendant, as in this case, has himself occupied the premises, and has received no rents. On this theory the plaintiff is absolutely without remedy, and that, too, for no better reason than that the defendant, instead of renting the land to tenants, has himself occupied it and enjoyed its fruits. But Courts of Equity, do not administer relief in such cases, on an inflexible rule of this character. On the contrary, the relief varies according to the exigency of the particular case, so as to prevent a failure of justice. Worrall v. Munn, 38 N. Y. 137, was an action for the specific performance of a contract to convey a parcel of land, Araluable only for beds of clay suitable for making bricks, and utterly valueless for any other purpose. After the executory contract of •sale was entered into, the vendor sold and conveyed the premises to the defendant Munn, who took the title with notice of the plaintiff’s equity, and who occupied the premises for the manufacture of bricks. One of the questions was, to what compensation the plaintiff was entitled for having been kept out of the possession for a series of years ; and in discussing this point the Court said: “The general rule on this subject, as laid down by the elementary writers, and in the adjudged cases, is, that the Court of Equity will, so far as possible, jplace the parties [343]*343in the same situation as they would have been if the contract had been performed according to its terms; and, to that end, the vendor will be regarded as trustee for the benefit of the purchaser, and liable to account to him for the rents and profits ; and the purchaser will be treated as trustee of the purchase-money, if not paid, and will be charged with interest thereon. And when the vendor is himself in the actual occupation of the premises, he is charged with the value of the use and occupation.” (Robertson v. Shelton, 12 Beav. 360; Dyer v. Hargrave, 10 Ves. 506.)
“ But while this is the general rule, it is not inflexible; a Court of Equity moulds its own relief, and gives redress according to the circumstances of each case.”
In that case the land had no rental value, and yet the plaintiff had been deprived of the opportunity to use it for the only purpose for which it was valuable, and for which he had purchased it, and it was contended that he should be awarded as damages such profits as he could have made by the manufacture of bricks. But the Court held such damages to be speculative and too remote, and to prevent a failure of justice they awarded as damages interest on the purchase money during the time the possession was withheld. This case is cited not only in support of the proposition that the vendor in the actual occupation is chargeable with the value of the us.e and occupation, if the premises have a rental value, but also as demonstrating the flexibility with which Courts of Equity in this class of cases adapt the remedy to the exigency of the particular case so as to prevent a failure of justice. In Cole v. Tyson, 8 Ired. Eq. 170, the vendee, under an executory contract of sale, was let into the possession, and after a portion of the purchase money was paid, died, leaving minor children as his heirs at law. Thereupon the vendor took possession of the land, denying the title of the heirs, and claiming to be the absolute owner. The heirs brought an action for specific performance; and one of the questions was, whether the vendor was chargeable with the rental value of the land during his occupation. Ruffin, C. J., in delivering the opinion of the Court, said: “ His [the vendor’s] entry was in avoidance of his sale, and so was wrongful in the [344]*344view of the Court of Equity, in which he, as vendor, is regarded as a trustee for the vendee, except only in respect of the estate being a security for the price.” Again he says: “ Instead of the fair and legal course of filing a bill, [to enforce a vendor’s lien] the vendor, upon the mere force of his legal title, and talcing advantage of the incapacity and helplessness of the vendee’s children, injuriously denied any rights in them, and claimed a perfect title in himself, as well in equity as at law, and ás sucli entered, and in all respects acted as owner, by pulling down and selling, houses, and building others, and finally by conveying the fee. One thus abusing the power given by the legal title, and denying the rights of infants for whom he was trustee, cannot be looked on in a Court of Equity in any light but that of a tort feasor, by reason of a willful and gross breach of trust, and, therefore, he is justly chargeable with the highest occupier’s rent from the moment of the breach of trust.”
In the case at bar, the plaintiff, it is true, is not a minor; but he was entitled to a conveyance of the legal title in March, 1867, and in November, 1868, the defendants, with notice of his equity, entered into the exclusive possession, denying his rights either in equity or at law, and claiming to be the absolute owners. For more than ten years they have persistently denied his rights, have excluded him from the possession, and during the whole period have themselves enjoyed the fruits of -the land, while holding only the dry legal title as trustees of the plaintiff. One thus abusing the power given him by the legal title must, in a Court of Equity, as against the cestui que trust, be deemed a wrong-doer, and should be held to account for the rental value of the land. In a similar case, the Court of Appeals of Kentucky, in Baxter v. Brand, 6 Dana, 296, charged the vendor with the “ reasonable profits ” of the land during the time he occupied it; and as we understand the term “ reasonable profits ” in the sense in which it was used, it is the equivalent of the rental value of the land.
If the defendants are to account for rents and profits, or for the value of the use and occupation, the amount can be ascertained only in one of two methods—either, first, by charging them with the rental value of the land, as was done by the Court [345]*345below; or, second, by taking an account in which they would be debited with all sums realized, or which, with reasonable diligence, might have been realized from the cultivation and use of the land, and crediting them with all necessary or proper disbursements. If it should appear, on stating the account, that the disbursements equaled or exceeded the receipts, the plaintiff would get nothing, although for ten years or more he had been deprived of the opportunity to let the land at rent, or to devote it to such other use as his interest or convenience dictated. In other words, he would have been forced, against his consent, during all these years, to accept the defendants as his agents to conduct the business of farming his own land at his expense and risk.
Whatever may be the rule where a trustee has not himself occupied and enjoyed the trust estate, but has received rents from it, justice and equity demand that where he has wrongfully excluded the true owner, and has himself occupied and enjoyed the fruits of the estate, he shall at least account for its rental value. It is a favorite maxim with a Court of Equity, that it will consider as done that which ought to be done, and in such a forum the defendants will be- deemed to occupy the same position as though they had conveyed to the plaintiff the legal title when it was their duty to convey it, and had then refused to surrender the possession, and had continued to occupy and enjoy the fruits of the land. If they had done this, no one will doubt that the plaintiff could have recovered the rental value of the land in an action at law.
In the view of a Court of Equity, the plaintiff is to be deemed the owner from the time he became entitled to a conveyance of the legal title ; and in analogy to the relief granted at law, he may recover the rental value of the land.
But it is further contended that the defendants were in no default until after demand was made for a conveyance, and that neither the findings nor evidence show a demand prior to the commencement of the action. It is therefore insisted that the judgment is erroneous, in so far as it charges the defendants with rents and profits prior to the commencement of the action.
This point is well taken, unless it affirmatively appears from [346]*346the pleadings and findings that a demand would have been refused, and would therefore have been unavailing. The commencement of the action was undoubtedly a sufficient demand ; and from that time the plaintiff was entitled to rents and profits; but we cannot say that it affirmatively appears from the pleadings and findings that a prior demand would have been refused.
Judgment and order reversed and cause remanded,' with an order to the Court below to modify its judgment in accordance with this opinion. Remittitur forthwith.