
    
      Ruffners v. Lewis’s Executors and Others.
    July, 1836,
    Lewisburg.
    Oath of Insolvency — Effect in Passing Debtor’s Land* —Case at Bar. — On the 25th of July 1801, A. conveys a moiety of a tract of laud to G. in trust to secure a debt, with power, if the debt should remain unpaid on the 25th of June 1805, after having a division of the tract in the manner pointed out by the deed, to sell the moiety allotted to G. and with a proviso that if payment were made before the day. the deed should be void ; on the 8th of September 1801, A. conveys to R. and P. ten acres of the tract, by metes and bounds : before the 25th of June 1805, the debt secured by the deed of trust is paid : and in 1813, P. being charged in execution, is disch arged by taking the oath of insolvency— Held, 1. That the deed to R. and P. only gave them an equitable title : 2. That if it passed a legal title, that of P. upon his taking the oath of insolvency, became vested in the sheriff of Kanawha county, wherein the land lay : 3. That there was a beneficial interest in the estate, in the judgment creditor, to the amount of his demand, and in P. for the residue.
    Equity Practice — Bill by Insolvent and Assignees for Partition — Maintenance—Case at Bar. — P. after taking the oath of insolvency, with the assent of his judgment creditor conveys an undivided moiety in the ten acres to L. another creditor of P. in trust that L. shall sue for and recover the moiety and its profits, and after such recovery sell the land, and out of the proceeds of sale and the profits recovered pay the expenses of suit and the debts secured, and the surplus, if any, to P. — then a bill in equity is filed in the names of L. the trustee, P. the judgment debtor, and the judgment creditor, as plaintiffs, against defendants holding adverse, possession of the land, and R. to whom the ten acres were conveyed jointly with P. seeking a recovery against the adverse defendants, partition between R. and P. and application of the funds according to the deed to L. Held, equity has jurisdiction, and should not refuse to entertain the bill, on the ground of maintenance.
    Same — Same—Parties.—In being admitted that the individual who was sheriff of Kanawha in 1813, has died, and the necessity of conventing his heirs being waived, Held that this is a sufficient excuse for not bringing the sheriff or his representatives before the court.
    Same — Same—Same—Revival in Names of Representa-tives — When Proper — Case at Bar. — After a decree ascertaining the rights of the plaintiffs in respect to the land, and after partition made, and a conveyance directed to L. of the moiety sued for, he died : Held, as the suit was then proceeded in for the rents and profits only, to which the executors of L. were entitled, it was proper to revive it in their names, and not in the names of the heirs of L.
    -Tenants in Common.:: — Case in which defendants, holding adversely to the plaintiffs, were treated as tenants in common with the plaintiffs.
    Same — Account of Profits, — Principles on which account of profits will be taken for one tenant in common against another.
    Same — Allowances for Labour and Services — Expenditures. — what expenditures will be allowed the tenant in common sought to be charged, and how far allowances will be made him for his own la-bour and services.
    On the 25th of July 1801, George Aider-son, in order to secure the payment of certain debts due from him to William Griffith, amounting to ^190. 10. conveyed to Edward Graham one moiety of the tract of land on Kanawha river, on which said Alderson lived, supposed to contain 128 acres, upon trust that if the said sum of ^190. 10. with interest, or any part thereof, should remain due and unpaid on the 25th of June 1805, then the said Edward Graham, his executors or administrators, after advertising time and place as directed by the deed, should proceed to sell one half part in value of the said tract, the division to be made on the day of sale, by three men, one of whom was to be chosen by Alderson, his heirs, executors or administators, another by Graham, his executors or administrators, and the two thus chosen to choose a third; and upon such division into two parts equal in value, according to quality, soil and situation, it was to be determined by lot, or otherwise, which part should be appropriated to Graham, and which to Alderson. The sale was to be to the highest bidder, for the best price that could be obtained; and out of the proceeds, after paying costs -and charges, the debt and interest were to be satisfied, and the residue, if any, paid to Alderson. And it was declared that should Alderson, on or before the 25th of June .1805, pay to Griffith the costs of recording the deed, and the debt and interest, then the indenture was to be null and void and of no effect. 'This deed was proved and admitted to record in the court of Kanawha county, at September term 1801.
    *Oa the 8th of September 1801, Alderson, for the consideration of 500 dollars, conveyed to John Reynolds and Allj'n Prior a particular part of this tract of land, by metes and bounds. This deed was acknowledged by Alderson and admitted to record, likewise at September term 1801.
    On the first of March 1805, articles of agreement were entered into between Aider-son for the one part, and David Ruffner and Joseph Ruffner of the other, by which it was witnessed that Alderson had that day bargained and sold unto the said David Ruffner and Joseph Ruffner the tract or survey of land in Kanawha county, whereon he lived, with its appurtenances, and also part of another tract of land adjoining that first mentioned. Alderson bound himself and his heirs to make to the Ruffners a complete title in fee to all the lands sold, at the succeeding May term of Kanawha county court, and further agreed to give to them, immediately, peaceable possession of the premises, except a particular field, which he reserved to himself until the first of March 1806, when possession would be given of that part also. Por the lands purchased by them, David and Joseph Ruffner bound themselves to pay to Alderson ¿£500. in the following manner, that is to say, ¿f300. to be paid on demand (provided that nothing should be paid to Alderson until he should deliver unto Ruffners a deed cf trust executed by Alderson to Griffith on part of the said lands, so that the same should be free from incumbrance) ; ^100. to be paid on the first of March 1806, bearing interest from and after the first day of October 1806,' and the last ^100. on the first day of March 1807, bearing interest from the first day of October 1806. These articles were proved by one attesting witness, in Kanawha county court at September term 1805, and admitted to record.
    George Alderson died in the year 1805. *On the 22d of June 1805, George Griffith, for himself and as attorney in fact for Patience Griffith and William Griffith, executed a writing under hand and seal, transferring to Joseph Alderson all benefit and advantage which might be derived to them from the deed of trust exe; cuted by George Alderson on the 25th of July 1801 to secure debts to William Griffith their father; agreeing also to procure the relinquishment by the widow of William Griffith of her distributive share, and to procure from the administrators of the said William Griffith a release and full acquittance of all claim which they might have; and acknowledging by the said writing to have received, on account of these stipulations and covenants, full satisfaction, to wit, the full amount of principal and interest intended to be secured by said deed of trust. Joseph Alderson assigned this writing, on the 9th of July 1805, to David and Joseph Ruffner.
    Joseph Alderson and John Reynolds, executors of George Alderson, signed a writing directed to Silas Reynolds, Abraham Baker or John Shrewsbury, requesting one of them to assist in dividing the tract of land in Kanawha county whereon George Alderson in his lifetime resided, agreeably to the conditions of the deed of trust entered into by said Alderson to secure the payment of certain debts to William Griffith.
    On the 26th of October 1805 Abraham Baker, Silas Reynolds and Henry Harman executed a writing under their hands and seals setting forth that having been chosen according to the terms of the deed of trust executed by George Alderson deceased to secure the payment of certain debts due from said Alderson to William Griffith, they had proceeded to divide the tract of land in the said deed of trust described, into two equal parts, to the best of their judgment, according to quantity and quality, so that one part is of the same value with the other, by a line which they specified; and appropriating a particular part to Edward Graham the *trustee in the deed of trust. The part so appropriated to Graham was thereupon sold by him under the deed of trust, and purchased by David and Joseph Ruffner. It embraced the land conveyed on the 8th of September 1801 by George Alderson to John Reynolds and Allyn Prior.
    On the 17th of June 1813, Allyn Prior being in custody of the sheriff of Mason county under an execution at the suit of Thomas Edgar, took the oath of insolvency, and conveyed to Maurice Reynolds sheriff of Mason county his real estate, amongst which he mentioned all his right, title and interest in a certain salt well and salt works and land adjoining, on the river Kanawha and in the county of Kanawha, then held by the Ruffners. This deed was duly recprded. Afterwards, on the 13th of March 1814, Maurice Reynolds sheriff of Mason made a deed to Andrew Lewis and Lewis Summers, reciting, that on the 19th of August 1813, the property so conveyed by Allyn Prior was publicly sold at Mason courthouse, when Andrew Lewis and Lewis Summers became purchasers of particular tracts at certain specified prices, amongst which was the right and interest of the said Allyn Prior in the salt well and adjoining land before mentioned, at the price of ten dollars; and thereupon conveying to the said Andrew Lewis and Lewis Summers the property so purchased by them. This deed was also recorded.
    Sarah Alderson the widow of George Al-derson, on the 3d of September 1818, released to John Reynolds, Andrew Lewis and Lewis Summers all her right or claim to the land conveyed by her deceased husband to John Reynolds and Allyn Prior. This release was likewise recorded.
    On the 20th of September 1821, a deed was made between Allyn Prior and Margaret Lewis his wife and Lewis Summers of the first part,, Andrew Lewis of the second part, and Thomas Edgar of the third part, reciting *that Lewis Summers and Andrew Lewis, who had purchased and received a deed from the sheriff of Mason, did, together with John Reynolds, «institute a suit in the Lewisburg chancery court for the recovery of the land conveyed by Alderson to Prior and Reynolds, and that at June term 1821 of the said court, the bill of the said Lewis and Summers was dismissed, so far as the same was founded on their said purchase and deed, the chancellor considering that, by the law concerning insolvent debtors, the sheriff of Kanawha could alone take and pass any right to the lands in that county. At the time of making this deed, it seems to have been supposed that the legal title to those lands yet remained in the said Allyn Prior, subject to the lien of Thomas Edgar. Prior and wife and Summers, with the consent of Edgar, shewn by his being a party to the deed, convey to Andrew Lewis one equal undivided moiety of the tract of land conveyed by Alderson to Prior and Reynolds, which tract is set forth by its boundaries, and is stated to contain by estimation ten acres. The conveyance is upon trust that Lewis, either in his own name or in that of Prior, or both, or howsoever he may be advised is best, shall sue, either in law or equity, for the said moiety, with the rents, issues and profits thereof whether pastorío come, and the same recover from the hands of the said Ruffners, or from those of any other into which it may come, or who may be liable therefor; the said Lewis suing as aforesaid at his own expense: that so soon as Lewis shall have recovered the said land, and the rents, issues and profits thereof, he shall proceed to sell the said land for the best price that can be had, as well as to collect the rents, issues and profits that may be decreed, and out of the moneys received from either source, pay first all charg'es, expenses and disbursements which the said Lewis may have incurred or made in suing as aforesaid; secondly, the debt due to Edgar, with interest and costs; thirdly and fourthly, *debts of a particular description, due or to become due to Lewis Summers and Andrew Lewis, with interest thereon; fifthly, another debt due to Lewis, with interest; and sixthly, the residue, if any, to the said Prior or his representatives. This deed was admitted to record in the office of Kanawha county court, on the 24th of September 1821.
    Soon after the execution of this deed, the suit contemplated by it was commenced in the superiour court of chancery holden at Greenbrier courthouse. The subpoena issued on the 5th of October 1821, and the bill was filed in April following. The bill is in the names of Andrew Lewis, Allyn Prior and Thomas Edgar, and makes David and Joseph Ruffner, John Reynolds and Edward Graham defendants thereto. It charges that at the time of the execution of the agreement of the 1st of March 1805, the Ruffners were well apprised of the claim of Prior and Reynolds under the deed of September 8th 1801, and insists that the land conveyed by that deed is not, upon any fair construction of the agreement, embraced thereby. Nevertheless the Ruffners took possession of the land so conveyed to Prior and Reynolds, when they obtained- possession of the land really embraced bjr the agreement. It alleges that the Ruffners, for the fraudulent purpose of defeating the claim of Prior and Reynolds, colluded with the executor of William Griffith and Joseph Alderson the brother and acting executor of George Alderson, to obtain an assignment of the trust deed, instead of a mere release; and this thejr did, whilst they retained in their hands as the whole purchase money agreed by them to be paid to the said George, and were therefore at all times in possession of the ample funds of the said George, to pay off the amount secured by the trust deed. The plaintiffs contend that notwithstanding the attempt to get a title by assignment, the trust deed is in law extinguished by the transaction. Even if the trust remained in force, they contend that *after the death of George Alderson, the trustee could not legally proceed without the aid of a court of chancery in appointing commissioners to divide the land, and that the whole of the proceedings in relation to the appointment of commissioners, the designation of the part to be sold, and the sale itself, were irregular and illegal. The bill prays that a moiety of the ten acres may be decreed to Lewis as claiming under Prior, that a division may be made between Lewis and Reynolds, that an account be taken of the rents and profits, and Prior’s share thereof paid to Lewis; or if there can be no decree in favour of Lewis, that it be made in Prior’s favour; and that the land to be decreed to him be sold to pay Edgar’s judgment, and then the residue of the proceeds, with the rents and profits, paid over to Lewis, for the remaining purposes of the trust.
    The defendant David Ruffner demurred to the bill, assigning for cause, first, that the interest of Prior became vested by law in the sheriff of Kanawha upon his taking the oath of an insolvent debtor, and yet the sheriff of Kanawha was no party to the bill; secondly, that as to the complainant Andrew Lewis, no interest, either in law or equity, in the land or its proceeds is shewn to be in him, because the deed dated the 20th of September 1821 is void in law and equity, being made in opposition to and violation of the public law against conveying or taking pretensed titles, and made, too, for the purpose and with the view of maintaining, supporting, and carrying on law suits and encouraging litigation, and because none of the parties executing that deed could convey to Lewis any of Prior’s former claims to the land or its proceeds, the same having been vested by law in the sheriff of Kanawha, and not shewn to be out of him.
    The said defendant David Ruffner then proceeding to answer, stated that the purchase by himself and Joseph Ruffner, on the 1st of March 1805, was of the whole of *the survey of land in Kana-wha that George Alderson then lived on (and not merely of a part thereof) together with a part of an adjoining tract; and in order that the land he then lived on might be freed from all incumbrances whatever, it was stipulated that said George was to deliver to this defendant and said Joseph Ruffner the deed of trust to secure certain paj'ments to William Griffith. The answer then set forth, that shortly after the purchase, upon the said George’s suggestion that he would be unable, of his own means, to procure the deed of trust and deliver it over, unless some aid veas afforded him, Joseph Ruffner paid to him ISO dollars in cash, and about the same time 160 dollars in brandy and whiskey, which was in part payment of the purchase. These funds, instead of being appropriated bjr said George as they were intended, were applied by him entirely to other purposes. A short time after the death of the said George, defendant and said Joseph, for the first time discovering that the land had been still further encumbered by a title bond executed on the 21st of September 1802 by said George to Joseph Alderson, purchased the bond from said Joseph for ,£200. for which they executed their two notes to said Joseph, -which notes they afterwards discharged. Being still desirous to procure the deed of trust before mentioned, they got Joseph Alderson, who lived in Monroe county, where the executor of William Griffith also lived, but who was frequently coming down to Kanawha where this defendant and Joseph Ruffner lived, to purchase it for them, which was done, and (as this defendant believes) the deed of trust assigned over to them. For this assignment they paid the amount, or nearly the amount, of the sum secured to said Griffith. Defendant and said Joseph considered the payments before mentioned as amounting to the ^500. they had engaged to give George Alderson.
    *In the progress of the cause the plaintiffs Allyn Prior and Thotnas Edgar having died, the suit was revived in the name of the administrator and heirs of the former, and the executors of the latter. The bill was taken for confessed as to the defendant Joseph Ruffner upon an order of publication, and as to the defendants Edward Graham and John Reynolds upon a decree nisi. The person who .was sheriff of Kanawha county in 1813, was admitted by the parties to be dead, and the necessity of conventing his heirs at law was waived.
    On the 18th of November 1829, the cause came on to be heard upon the bill, answer of David Ruffner, exhibits, examinations of witnesses, and the papers and proceedings in a former suit mentioned in the deed of September 20th 1821, and referred to in the bill and answers. On consideration whereof, the court, being of opinion that the defendants David and Joseph Ruffner had acquired no right to the land in the bill mentioned, either by their contract of March 1805 with George Alderson, or by the proceedings of the trustee Edward Graham under the trust deed of the 25th of July 1801, and that Allyn Prior and those claiming under him were entitled to a moiety of the said land, decreed, that the land, as described in the deed of the 8th of September 1801 from George Alderson to Allyn Prior and John Reynolds, be divided into two equal moieties by certain commissioners appointed for the purpose, and that they assign one moiety to the plaintiff Andrew Lewis. The court also directed a master commissioner to take an account of the rents and profits of the land embraced in the deed of the 8th of September 1801 (deducting the value of the permanent improvements), which the defendants had or might have received from the first day of January 1806 to the time of taking the account; also from the first day of October 1811, and from the 6th day of October 1816,  to the same time; stating a moiety of each.
    A report was afterwards returned by the commissioners appointed to divide the land, and a decree pronounced thereupon on the 27th of November 1830. A particular moiety of the land, with an undivided moiety of the salt well, was assigned to Lewis; and it appearing by a deed filed in the cause, of the date of February 27th 1830, and by other evidence, that the defendant John Reynolds had conveyed all his interest in the land to the defendant David Ruffner, it was decreed that the defendants David and Joseph Ruffner and .Edward Graham, by Matthew Dunbar of Kanawha, who was appointed a commissioner for the purpose, should convey said moiety of the land, .with an undivided moiety of the salt well, to Lewis, with special warranty, together with the right of piping the water thereof, to the extent of his interest in the salt well, to the said moiety qf the land, so that he should have the fair and free use and enjoyment of his undivided moiety of the salt well.
    On the motion of the defendants David and Joseph Ruffner, the master commissioner, in laking the account before directed, was authorized to state an account of the expenditures of the defendants in procuring or endeavouring to procure salt water.
    Many depositions were taken before the commissioner, and he made a report stating very fully his views of the case. The following were the results exhibited by the report. The first statement shewed that by his estimate the rents received, or which might have been received, by the defendants, from the first day of January 1806 to the date at which possession W’as relinquished to the plaintiffs in the winter of 1830-31, amounted to 12,040 dollars 33 cents, and that, deducting 3333 dollars 75 cents for permanent improvements, there remained, for the rents from the first-of January *1806, a balance of 8706 dollars 58 cents, of which the moiety is 4353 dollars 29 cents. The second statement shewed that by his estimate the rents received, or which might have been received, by the defendants, from the 1st of October 1811, after deducting for permanent improvements, amounted to 6199 dollars 66 cents, of which the moiety is 3099 dollars 83 cents. The third statement shewed that by his estimate the rents from the 3d day of October 1816, after deducting for permanent improvements, amounted to 4319 dollars 71 cents, of which the moiety is 21S9 dollars 85 cents.
    To the report of the commissioner the defendants filed six exceptions, among which were the following:
    “Fourth exception. The defendants are advised that they are entitled to compensation for the expense and trouble of the experiments made by them for obtaining salt water in 1806-7. The experiments were made upon the land in controversy, and without them salt water by boring would not, in all probability, have been obtained. They were necessary, and ulti-matel3r led to the great discover}' by which the land in part owned by the complainants became extremely valuable. The defendants insist that the complainants ought not to be entitled to a full share of the benefits of these experiments, without bearing a corresponding part of the expenses attending them. The report excluding defendants from any compensation for these expenditures is excepted to.
    Fifth exception. The defendants are further advised that they are entitled to compensation for the cost of erecting a furnace &c. as well as the cost of furnaces repaired or subsequently erected on the lot in controversy. The furnace was indispensably necessary to the manufacture of salt, and formed part of the subject for the use of which rent was paid. The furnaces were of the kind regarded as permanent, although they have long since gone to ruin. But if they are regarded as *mere temporary structures for the purposes of trade, still the complainant, as a joint owner of the land with the defendants, and claiming an equal portion of the profits, ought to defray an equal portion of the costs. If he claims nothing in the furnace, he ought to have none of the profits accruing from it; and a fair criterion to ascertain what amount of rent he ought to have, would be the price at which the land would have rented without the furnaces or any of the fixtures, the tenant making them for himself. The report is excepted to for the failure of the commissioner to credit the defendants with the cost of these improvements.
    Sixth exception. The report is further excepted to, because no allowance is made for the personal labour and attention of the defendants in the improvements made upon the property in controversy.”
    On the 16th of May 1833, the cause was heard upon the report and exceptions, and the court then sustained the fourth, fifth and sixth exceptions, and ordered the report to be recommitted to the commissioner, for him to reform it so as to shew, 1st, The amount of compensation to which the defendants are entitled, for the expense and trouble of the experiments made by them in obtaining salt water in the years 1806 and 1807. 2dly, The amount of compensation proper for the personal attention of the defendants to the improvements made, and for the cost of erecting the furnaces and keeping the same in repair.
    On the 11th day of October 1833, the death of the plaintiff Andrew Lewis being suggested, it was ordered that the cause stand and be revived in the same of John Lewis and George W. Stribling his executors. And then the cause being again heard upon the report and exceptions, the court rescinded the order of the 16th of May 1833, overruled all the exceptions of the defendants, adopted the second statement in the report, and pronounced a final decree in favour of the plaintiffs against *the defendants David and Joseph Ruffner, for the sum of 3099 dollars 83 cents, the moiety mentioned in that statement, which sum, when received by the plaintiffs, it was declared would constitute in their hands a fund in trust to be applied towards the payment of the several debts embraced in and secured by the trust deed of the 20th of September 1821, according to the provisions thereof, and the rights of the several creditors named therein. And the defendants David and Joseph Ruffner were decreed to pay the plaintiffs their costs, except the costs of the division of the lot and premises, which were to be borne equally by the parties. From this decree an appeal was allowed, on the petition of David and Joseph Ruffner.
    Johnson and B. H. Smith, for the appellants.
    I. The proper remedy of the plaintiffs is at law. They have come into equity against defendants holding adversely to them. It may be said, they would have been obstructed at law by the outstanding legal title in Graham, and that the object is to get in the legal title. But this is col-ourable merely. The debt under the deed of trust having been paid in 1805, the deed would have presented no obstruction. Suppose the sheriff of Kanawha had brought ejectment against the Ruffners; could they have set up Graham’s title? Certainly not. For Alderson could not, and they, being his vendees, are on the same footing. The outstanding satisfied title could not be set up by a tenant to whom it did not belong. Besides, the satisfaction of the mortgage was before forfeiture. This takes away all ground of jurisdiction as against Graham and Ruffners. Can there be any redress against Reynolds? It may be said, the suit is to procure partition between Reynolds and Prior ; but equity will not decree partition where the legal title is involved. Stuart’s heirs &c. v. Coalter, 4 Rand. 74; Straughan &c. v. Wright &c., Id. 493; Lange v. Jones, 5 Leigh 192.
    *11. It is apparent on the face of the deed to Lewis, that this is a case of maintenance — a case of buying a law suit. Lewis was to furnish the fund for carrying on the suit. 5 Bac. Abr. Maintenance, pp. 249, 250 ; 5 Com. Dig. Maintenance, p. 27; 4 Blac. Com. 134, 135. But it will be said, the subject is an equity, and the arrangement is between debtor and creditor, to secure money. A. holds land, claiming title; B, also claims title. B. cannot sell and convey, for this would violate the statute. Will you say, he may bargain to sell and convey, and his bargainee may go into court and sue for the legal title? or will you say that a man may mortgage that to be sold, which he could not sell himself? To allow either, would be against the policy of the law. The party’s being a creditor will not cleanse the transaction. Allen v. Taylor, lately decided in the court of appeals at Richmond. Morrison v. Campbell &c., 2 Rand. 206.
    III. Though the deed to Lewis should be held valid, yet he cannot maintain this suit. Summers and Lewis acquired no title by the deed from the sheriff of Mason. He had no title, and could convey none. Nor did any title remain in Prior. All the estate which belonged to him, whether legal or equitable, was vested in the sheriff of Kanawha. 1 Rev. Code, ch. 134, $ 34, p. 538.
    IV. The commissioner has pertinaciously refused to state an account of actual prol-ifs. His account is of such as he thinks might have been made. He does not treat the Ruffners, as tenants in common with Prior have a right to be treated. It is a case in which cotenants have stood by and seen the Ruffners making expensive improvements, and said nothing. The Ruff-ners were pioneers. They have given value to the land by their labour. Their experiments at length discovered the salt water which gives value to the property. They should have a fair allowance for their services, for the value of their improvements, and for the cost of their ^experiments, whether successful at the time or unsuccessful.
    V. Rents and profits are given ten years before the suit was brought. This cannot be done.
    VI. On the death of Lewis, his heirs, and not his executors, should have been made parties. If the executors ought to have been parties, they were made such irregularly. The revival was not on motion, and there is no evidence that the persons in whose names the suit is revived, are in fact executors.
    B. G. Baldwin, for the appellees.
    I. As to the jurisdiction of equity. If the appellants can shew that there would have been no difficulty at law, it avails them nothing, for the clearer the legal title, the smoother the way into equity for partition. But this is a case of tenancy in common. The mere possession of one tenant cannot oust the jurisdiction of equity. Here there is no actual ouster. 2 Starkie on Ev. 508; Peaceable v. Reed &c., 1 East 558; Taylor v. Horde, 1 Burr. 111. The idea seems to be, that the more iniquitous the conduct of the tenant, the less chance there is to get into equity. But in all cases of fraud, not penal, equity has concurrent jurisdiction. Poore v. Price, 5 Leigh 52. Hovenden on Frauds 477-9. It has jurisdiction also on the ground of trust (the trustee having proceeded most irregularly) and likewise under the head of account.
    II. The statute against pretensed titles does not apply to equitable titles. Equity will not assist the buyer of a pretensed title, because it is wrong to violate the law; but a court of equity never would refuse its aid to help a creditor to get his debt, where the debtor has placed him in his shoes. It will allow him to get the property and convert it to payment of his debt. Allen &c. v. Smith, 1 Leigh 248-254; Wood v. Griffith, 1 Swanst. 43; Hartley v. Russell, 2 Sim. & Stu. 244; 1 Cond. Eng. Ch. Rep. 439; Sharp v. Carter, 3 P, Wms. 378. *111. The creditor at whose suit the debtor was in execution when he took the oath of insolvency, is before the court as plaintiff, and he has a title, whether the deeds to and from the sheriff of Mason be good or bad. No deed being made to the sheriff of Kanawha, it may be questioned whether he has any title. But the necessity of making him a party was waived.
    IV. That actual profits only should be charged, is denied. The circumstance that the occupation has been unprofitable will not avail the wrongdoer.
    V. The plaintiffs are entitled to rents and profits from the time when their title accrued. Dormer v. Eortescue, 3 Atk. 124; Bennet v. Whitehead, 2 P. Wms. 645; Attorney General v. Brewers’ company, 1 Meriv. 496. Jeremy’s Equity 507. The statute of limitations is not relied on in the pleadings, Hickman v. Stout, 2 Leigh 6, and if it had been, the case is one in which the defendants knew the plaintiffs’ rights, and resorted to fraudulent practices to defeat them. Rankin v. Bradford &c., 1 Leigh 163. On every ground, they should be required to pay from the earliest date. The decree is wrong in not giving enough. The first statement should have been adopted, and not the second.
    VI. The revival in the name of the executors, upon motion without notice, is under the act of March 7th 1826. Acts of 1825-6, ch. 15, ‘i 2, p. 15, Sup. to Rev. Code, p. 130. There was no occasion to revive in the name of the heirs.
    
      
      Insolvent Debtors — In Whom Title to Land Vests.— Nor the proposition that the title to land of a debtor, upon taking the oath of insolvency, vests in the sheriff, the principal case is cited with approval in Syrus v. Allison, 2 Rob. 205.
      Pretense Titles. — On this question, the principal case is cited in Waggener v. Dyer, 11 Leigh 392, and note; Steed v. Baker, 13 Gratt. 387.
    
    
      
      Revival of Actions. — The principal case is cited in Stockton v. Copeland, 30 W. Va. 679, 5 S. E. Rep. 146: foot-note to Davis v. Teays, 3 Gratt. 283.
    
    
      
      Tenants in Common — Measure of Accountability.— In Graham v. Pierce, 19 Gratt. 38, Moncure, P., says : “As a general rule, where one tenant in common occupies and uses the common property to the exclusion of his co-tenants, or occupies and uses more of the common property than his just share or proportion, the best measure of his accountability to his co-tenants may be their shares or proportions of a fair rent of the property so occupied and used by him, according to the principle laid down in the case of Early & wife v. Friend, etc., 16 Gratt. 21, 52. Yet, as was said in that case, ‘there may be peculiar circumstances in a case, making it proper to resort to an account of issues, profits, etc., as a mode of adjustment between the tenants in common.’ Id. p. 54; Ruffners v. Lewis's Ex’ors, 7 Leigh 720. Under the circumstances of this case it was proper to resort to an account of issues, profits, etc., as a mode of adjustment between the tenants in common.”
      On this question the principal case is cited in foot-note to Graham v. Pierce, 19 Gratt. 28; Early v. Friend, 16 Gratt. 50, 54 (see foot-note); foot-note to Newman v. Newman, 27 Gratt. 714: Paxton v. Gamewell, 82 Va. 710, 1 S. E. Rep. 92: Ballou v. Ballou, 94 Va. 352. 26 S. E. Rep. 840; Ogle v. Adams, 12 W. Va. 242; Dodson v. Hays, 29 W. Va. 601, 602, 2 S. E. Rep. 429, 430; Ward v. Ward, 40 W. Va. 619, 21 S. E. Rep. 749: Yates v. Stuart, 39 W. Va. 131, 19 S. E. Rep. 425; Williamson v. Jones, 43 W. Va. 581. 582, 27 S. E. Rep. 419, 423. The principal case is reported with note in 30 Am. Dec. 513. See monographic note on “Joint Tenants and Tenants in Common” appended to Ambler v. Wyld, Wythe 235.
    
    
      
      So in tie record.
    
    
      
      Five years before commencement oí former suit. — Note in Original Edition.
    
    
      
      Five years before commencement of this suit.— Note in Orginial Edition.
    
   CARR, J.

This case has been well argued; and agreeing as I do in the general views of my brother Tucker, I shall be very brief in touching some of the outlines of the case. I think the court has jurisdiction, because Prior had no legal estate in the moiety of the ten acres, but an equity only : and further, because, if he once had the legal estate, it was divested by his oath of insolvency, and vested by the law in the sheriff of *Kanawha, where the land lay. It seems to have been the idea, that the deed of the insolvent conveyed his property; but this is a clear mistake. By the express words of the act, the estate of the insolvent, not only that contained in the schedule, but “any other estate which may be discovered to belong to the prisoner, shall be vested in the sheriff of the county wherein such lands, tenements, goods and chattels shall lie or be found;” and this has been the positive law ever since the year 1769, 8 Hen. stat. at large p. 326. Whereas the law requiring the prisoner to deliver up the personal and convey the real estate, was first enacted in 1799; though not as repealing the other, for they both stand together in the law to the present day. Lewis, then, and Summers, the purchasers under the sale of the sheriff of Mason, acquired no title to the land: it was vested in the sheriff of Kanawha, for the benefit of Edgar the creditor at whose suit Prior was in execution. And the most serious objection I have encountered in this suit, is the fact that the sheriff of Kanawha was not made a party; a fact which would have had much weight with me, but for what had happened in the court below. There, when the objection was taken, and the court gaye leave to amend the bill by making the sheriff a party, it was acknowledged by the defendants that he was dead, and the necessity of making his representatives parties was expressly waived. Taking this into consideration, and further, that the sheriff is a mere trustee for the benefit of the creditor, and that creditor a plaintiff in the bill praying the aid of the court, I do not think the objection should avail to reverse the decree. It may be further said, that this is a suit- for the legal title, and also for partition. I am satisfied, both on the subject of parties and jurisdiction. I do not think this a case either of maintenance or pretensed title. It is the case of creditors scuffling for their money, and the debtor willing to help them, by *suffering them to aid in the recovery of his right, not for their profit in the way of speculation, but so far as the payment of their just debts may go. In this view it is like the case of Allen &c. v. Smith, 1 Leigh 231, and the case there cited, and also the case of Hartley v. Russell, 2 Sim. & Stu. 244; 1 Cond. Eng. Ch. Rep. 439.

I think, however, the accounts have been taken wrong. The Ruffners must be treated as tenants in common with Prior; not as trespassers. They are liable for a fair share of the profits, and entitled to full compensation for their expenses fairly and reasonably incurred, as well those attending their abortive efforts to find water, as their more fortunate ones.

TUCKER, P.

The first question in this case is as to the jurisdiction of the court; and that, I think, is easily disposed of. When Prior took the insolvent debtor’s oath in 1813, his deed for the land in question not only operated nothing, because it was without a sufficient consideration to raise an use and to give effect to a bargain and sale, and because the sheriff of Mason had no right to receive such a deed, but the land itself immediately vested, without deed, in the sheriff of Kanawha county, within which the land lay. 1 Rev. Code, ch. 134, § 34, p. 538; Shirley v. Long, 6 Rand. 735. The consequence was, that Prior’s legal title was divested, that the beneficial interest or equitable right to the estate was in Edgar the creditor, to the amount of his demand, and in Prior for the residue. Thus circumstanced, it was impossible for Edgar or Prior to maintain an ejectment in their own names. The action indeed might have been brought in the name of the sheriff, if he was alive at the institution of this suit. But if, by analogy to the case of an ordinary trustee and cestui que trust, we even suppose that the creditor and debtor could control and direct this trustee (not a trustee of their own creation, but the creature of the law) *yet it would not follow that the ces-tuis que trust would not have a right to assert their claim in a court of equity. Before the recent act of assembly passed in 1821, even an assignee, and much more a transferee, of a bond might sue in equity, though there was no doubt he might use the obligee’s name and sue also at law. 6 Munf. 23. In the case of a cestui que trust of lands, I am not aware of any case which has deprived him of his right to sue in a court of equity, merely because an action might be maintained by his trustee at law. I am therefore of opinion that the court had jurisdiction, even if the sheriff of Kanawha had been living, which does not appear. As to the obligation on those interested, to hunt up his heirs and sue in their names, and encounter all the embarrassments incident to such a proceeding, it could not surely be insisted on by a court which considers itself the peculiar protector of the rights of the cestui que trust. That court will not turn him from its doors upon such pretences, or involve him in embarrassing litigation to avoid giving him relief.

Under this view of the case, it is true, the sheriff or his heirs should in strictness be parties, but the necessity of making them so was expressly waived, as appears by the decree.

But this is not all. Prior, in my opinion, never had the legal title. The deed of bargain and sale was made to him after the legal title had been passed away by the deed of trust to Graham: and though that deed was defeated and avoided by the payment in June 1805, before the day of payment arrived, yet between its date and the performance of the condition, the fee was in Graham. Eor where an estate in fee is conveyed upon condition, so complete is the title of the feoffee or bargainee, that his wife is entitled to dower, though that right will be defeated by entry upon the performance of the condition. 1 Cruise’s Dig. 192; 2 Id. 42. Graham therefore had the fee, and the bargain and sale could only ^'operate as a contract, and of course gave but the equitable title.

Believing, from these views of the case, that there is no reasonable doubt of the jurisdiction, I proceed to consider next whether this is a case of maintenance, which is not entitled to the countenance of this court. In support of this position the case of Allen v. Taylor, decided in the court of appeals at Richmond, has been cited, and the case of Morrison v. Campbell &c., 2 Rand. 206.

I am ready to admit that equity will not enforce an equitable title, purchased by a party under circumstances which, if it were a legal title, would subject him to the penalties of the act against buying and selling a pretensed title; which was the position taken by judge Brooke in Allen &c. v. Smith, 1 Leigh 254. But with this admission I think it perfectly consistent to say that, as a general principle, the act does not apply to every sale and purchase of equitable rights. Such was the decision in that case; and in the case of Wood v. Griffith, 1 Swanst. 43, lord Eldon says, “It is extremely clear, that an equitable interest under a contract of purchase may be the subject of sale. If I were to suffer the doctrine to be shaken by any reference to the law.of champerty, I should violate the established habits of the court.” I do not rest this case, however, upon this general doctrine; for I am free to acknowledge that if Andrew Lewis had, before Prior’s insolvency, purchased of Prior his right, whether it te legal or equitable, while the Ruffners were in possession claiming title whether legal or equitable, this court would not countenance the transaction. That, if X mistake not, was the precise case of Allen v. Taylor. Taylor, there, of his own mere motion, intruded himself, by a voluntary purchase, into the contest between the other parties. But Andrew Lewis, in this case, does not stand before the court in the light of a party who, without other motive *than the desire of an advantageous speculation, meddles in the feud of others. He stands, as does Edgar also, in the favoured light of a creditor, who is held to be justified in gathering up the wreck of his debtor’s property, to save himself from sinking. It is with him the tabula in nau-fragio, and he is justified in seizing it. This distinction is recognized and acted upon by the decision in Allen &c. v. Smith, and also in the case of Hartley v. Russell, 2 Sim. & Stu. 244, 1 Cond. Eng. Ch. Rep. 439. That was a case where a creditor, who had sued his debtor, agreed to abandon his suit on the debtor’s giving him a lien on securities in the hands of another creditor, ■with authority to sue that creditor; and the creditor agreed to use his best endeav-ours to recover the securities. The court held that the agreement did not amount to champerty, as there was no stipulation that the creditor was to have the profits to be derived by the debtor from the suit. He was only to receive payment of his debt. So here, Andrew Lewis by the terms of his contract is to pay over to Prior the excess after discharging the debt. He is in fact an incumbrancer only, not a purchaser; and I am not aware that a bo'na fide creditor cannot take a lien on the equitable estate of his debtor, notwithstanding an adverse claim.

We have, however, stronger authority for this doctrine than the decided cases. We have the act of assembly. If this be cham-perty, the statute commits the first act of champerty. It provides that where an insolvent debtor takes the oath of insolvency, the estate contained in his schedule, with any other estate which may be discovered to belong to him, for such interest therein as such prisoner hath, and may lawfully depart withal, shall be vested in the sheriff. No one has ever supposed that a debtor, who had a good title to a tract of land which was in the adverse possession of another, was absolved from surrendering it in his schedule, or that it was not vested in the sheriff. The pretensed title, if such it be, *therefore passes by the law itself to the sheriff, and he is moreover required to set it up and sell it to the highest bidder; so that here was an express authority to the sheriff of Kanawha to sell, and to any person to purchase, this supposed pretensed title. And why? Because the insolvent debtor being ruined, and his creditors likely to suffer, the law deemed it proper to provide for the disposition of the wreck of his estate for their benefit. And if the purchase of Andrew Lewis at a sheriff’s sale would not have been champerty, by what reason shall it be so adjudged, when, the sheriff being dead, the debtor, with the assent of his creditor, transfers the property, not in absolute ownership, but only as a security for his debts, vesting in one of his creditors the po-wer of prosecuting the demand, as was done in the case already cited of Hartley v. Russell? I cannot, for my own part, conceive; and am therefore of opinion that the transaction is unassailable.

It has been earnestly objected, that on ■Lewis’s death, his heirs and not his executors should have been made parties. I think not. The question of title was settled as long ago as 1829, and in 1830 a decree was rendered, confirming the partition made under the former order, and decreeing a conveyance. The cause then proceeded for the rents and profits only, to which the executors were entitled ; and they were therefore the proper parties. The act of assembly authorized the revival on motion, and the court having ordered the revival, we must presume the motion to have been made. If the parties in whose name the revival was made were not executors, the defendants could have had no difficulty in contesting the fact.

Thus far the case seems to me altogether in favour of the complainants. Eor the residue, it is in various respects decidedly against them. I have no doubt that in this case the account, as taken under the orders of the court, does the defendants great injustice.

*Eirst, as to rents and profits: I have no question that in the settlement of them, the Ruffners ought to be treated as tenants in common with Prior and those claiming under him. They claim to hold Reynolds’s interest at a very early period, by contract with him; and therefore held in his right one moiety, while they wrongfulljr took the exclusive enjoyment and possession of the other moiety, which did not belong to them.

Out of this relation grows, I think, the principle that they ought not to be charged with rents or profits where none have been made (provided they appear to have employed the property in good faith with a view to make it profitable, but have failed in doing so) nor with speculative profits, where the profits are susceptible of being ascertained. I ani not aware, however, that this relation would have prevented the operation of the statute of limitations, had it been pleaded. But as it was neither pleaded, nor relied on before the commissioner, it must be taken to be out of the case. The party might have pleaded the statute to the bill, or upon the account he might have insisted upon it before the commissioner. Eor if the defence is set up before the commissioner, the answer to that defence may also be produced. But if the objection be permitted to be made by way of exception only in court, it cannot be properly answered there.

Secondly, as to improvements: I am clearly of opinion that the defendants were not only fairly entitled to a credit for their expenses and actual services (not their invention and talent in contriving the machinery &c.) in the successful operation which terminated in rendering the property of great value, but also for their expenses, labour and services in their unsuccessful experiments. The plaintiffs, if they will have advantage from their successes, must be content to share in their disappointments and failures. He who takes the profit must share the burden. Their works were prosecuted *under the impression that the property was their own. Their bona fides, therefore, cannot be doubted. They cannot be suspected of reckless expenditure, or of wild and extravagant adventures. They appear to have been as prudent and sagacious, as zealous and persevering. The plaintiffs are now to have the benefit of the labours of their lives, the fruits of their sagacity, and the harvest of their untiring energy and perseverance. They cannot therefore reasonably object to share in their outlay. For many a sleepless night and anxious day the defendants must still expect to go unpaid, for these admit not of estimate. But what they have expended in the bona fide pursuit of their great and meritorious object, ought to be unstintingly repaid. In taking this account, the expenditure of each year should be offsettled against the rents and profits; and thus we may approximate, at least, to justice between the parties. For thus, whether the act of limitation be or be not relied upon, the claim for improvements in any year will be liquidated, in whole or in part, by the rents and profits of that or any succeeding; year. It remains only to add, that the commissioner has given credit to the Ruff-ners for the expense of certain permanent improvements, — sinking a gum, boring the rock, tubing it, and reaming: but he has. given them no credit for the furnaces and' machinery necessary for making salt. These fixtures, as well as the others, were made at the expense of the Ruffners. It should be ascertained what they were worth at the time partition was made under the decree, and the Ruffners should have credit for one moiety thereof.

BROCKENBROUGH and CABELE, J.,. concurred in the opinion of the president.

Decree reversed, and cause remanded for" further proceedings.  