
    *Administrators of Winthrop v. Huntington and Wife.
    Person entering into land under color of title, paying taxes and making improvements, as owner, being ejected at law, can not sustain a bill in equity for compensation and reimbursement against the rightful owner.
    This cause was adjourned for decision here, from the county of Huron. The case was this: Winthrop, the original complainant, had derived title to a tract of land in Huron county, under an order of sale, made by the orphans’ court of Connecticut. Huntington’s wife was the heir at law, and, in an action of ejectment, had recovered possession of the lands on the ground that the court directing the sale had no jurisdiction to direct a sale of the land in question, as adjudged by the court in the case of Nowler, Douglass, et al. v. Coit, 1 Ohio, 519. Winthrop and those under whom he claimed, had proceeded as owners to partition the lands, which at the time of sale were held in common by theFireland company, so called, had taken possession in 1807, and improved the lands, by reducing them to cultivation, and by the erection of buildings, and had also paid the taxes. In 1816 the respondents commenced their ejectment, in which they finally recovered. Winthrop then-filed the present bill in chancery against them, claiming to be reimbursed the expenses of partition, the amount of money paid for taxes, and a compensation for the performance of these acts, and preserving the land. The answer admitted the principal facts alleged in the bill, but denied that they gave the complainants any right. It set up other matter in avoidance of the claim. But as that matter was not considered in deciding the cause, it is deemed unnecessary to notice it in the report.
    Whittlesey and Newton, for the complainant:
    We do not apprehend that anything more is necessary than to turn the attention of the court to the decision in the case of Nowler, Douglass, et al. v. Dan. L. Coit, 1 Ohio, 519. The court in that case say, the complainants have derived a benefit from the payment of the taxes, and in equity ought to refund the money. In one sense the defendant is a mere volunteer in making the payment, but when the owner of the land in such case omits to pay the taxes as they fall due, he accepts the payment made by such ^-volunteer, and as to that constitutes him his agent by recognizing his acts. This reasoning applies in its full force to the case now before the court. The complainant supposed he had a good title to the lands, and took care of them as if they were his own. The defendants have derived a benefit by the payment of the taxes, and from surveying and allotting the lands. They have recognized his acts, and the acts of those from whom he derived his title, in the disposition and partition of the land. If he had attempted to perfect his title by omitting to pay the taxes, and had suffered the lands to be sold, and purchased them himself, this court, it is presumed, sifting as a court of chancery, would have adjudged that the complainant was trustee of the land, and that such sale was void. The court having decided that Coit had a lien on the land for the taxes paid him, necessarily subjects the land to the payment of all the taxes, paid either by the complainant, or by those under whom he holds title. The lien passed by the conveyance.
    The complainant holding the land in trust for the defendants is entitled to be refunded the money paid for the taxes, and for permanent improvements. 6 Johns. Ch. 67.
    The defendants slept on their rights from 1807 to 1816, with the full knowledge that the complainant was in possession of the lands, paying taxes on them, and fitting them for market, without taking one step to assert their rights. The excuse rendered is, that they did not know where the lands lay. This they might have ascertained by resorting to the public records. Another excuse is, that the war prevented them from resorting to the courts of justice. It is known that there was no interruption in the judicial proceedings of the country during the late war.
    Webb, for respondents: ■
    On the part of the respondents, it is contended that as the respondents in this suit had first established their right at law, that the complainant can have no right to recover back the taxes or any other money which he has paid.
    There- is no case to be found .in the books which authorizes a claim of this kind, and unless the court undertake to establish some new principles, this cause, on the first point we raise, must be decided in our favor. It may be said there *is no decision directly in our favor. This is no argument against us, but for us. No person before the original complainant in this suit ever thought of setting up such a claim. The case of Nowler and Douglass v.' D. L. Coit, cited by our opponents, so far from establishing anything in their favor is a ease, as we conceive, in our favor. In that case, Nowler and Douglass, instead of establishing their right at law, in the first instance, sought the establishment of their right and legal title in a court of chancery. The court in that case say as they had sought the aid of a court of chancery to establish their title, they should not have that aid unless they would submit to the rule, that he who would have equity should do equity. We-have established oúr right at law, and the language of that decision is virtually this, that had Nowler and Douglass first established their right at law, as they might have done, and the opposite party had sought redress in chancery, and thereby made Nowler and Douglass defendants in chancery, the court would have dismissed the bill. The court say, “perhaps a court of equity ought not im every case of such volunteer, and upon his application, decree a lien for the taxes, but where these taxes have been paid, under an opinion that the person who paid them owned the land, and when the true owners c ome into equity” (by the by, the real owners in this case never did) “ to examine that claim of ownership, and to have it quieted, the rule that he who asks equity must do it strictly applies.” We say that, from the whole circumstances of this case, that this is one of those cases in which a volunteer ought not to have redress, even if we had been originally complainants in-chancery.
    It is said, however, that a trustee may recover moneys by him paid, and the complainant holding the land as trustee for the defendants, is entitled to be reimbursed the money paid for taxes. This argument is of no force, for it is founded on false premises. Can it be said that a man who holds lands adversely to another by a bad title is to be considered as trustee for him who has the better title, so far as that money by him who has such bad title. paid out, shall be refunded by him having the better title. No, it can not be; and the authority cited by the gentleman has no analogy to this case.
    We say further in reply, generally, to the argument of our opponent, that this court, sitting as a court of chancery and ^equity, will take into consideration the origin of the claim, the circumstance that the land of one person was sold for the debt of another; that those debts were fraudulent; that the real owner of the land was an infant without guardian or friends for years, and knew not his rights. All these circumstances differ this case from the case of Nowler and Douglass v. Coit, and all other cases yet decided by this court.
    Whittlesey and'Newton, in reply:
    The respondent say “ that having established their right at law, the complainant can have no right to recover back the taxes or any other money he has paid;” and they treat the subject as if they supposed this was a general rule governing the decisions of courts of chancery. If a mortgagee establish his title to the mortgaged premises in a court of law, still the mortgagor has his equity of redemption. If the mortgagor redeems (the mortgagee being in possession), he is charged, in stating the amount, with the principal and interest of the debt, and the necessary repairs, and the mortgagee with the net proceeds of the rents and profits while he had been in possession. If the mortgaged premises are forest lands held in common, and the mortgagee (being in possession) should incur expenses in aparting them, and in paying taxes, and in allotting them, all being for the benefit of the estate, we conceive there can not exist a doubt that a court of chancery would allow such payment to the mortgagee in stating his account if the mortgagor petitions to redeem, or the mortgagee petitions to foreclose.
    It has been the practice of the court of common pleas in this circuit, when the mortgagee has petitioned to foreclose a mortgage, and the mortgagor has been in possession, but refused or neglected to pay the taxes, and they have been paid by the mortgagee, to allow such payments as a just charge against the mortgagor, and as a good lien on the land. It is believed the Supreme Court would sanction the like practice. If the mortgagor should pay and take up his notes, the title would then, at law, be perfect in him; and if the mortgagee was in possession, the mortgagor might recover in an action of ejectment; but would his having established his title at law cancel the ^equitable claim of the mortgagee to have the money so paid for taxes repaid ?
    - The court are not under the necessity of establishing any new principle, in order to grant the relief prayed for; but to apply an old principle to a new case. We admit that no case, in every particular similar to this, can be found in the books.
    No sales were ever made, under circumstances similar to those made in Connecticut, of the fire lands in Huron county. The State of Connecticut claimed jurisdiction over these lands; the Indian title was not extinguished to them, and at the time of this sale, no territorial court had jurisdiction there. It was the prevailing opinion at the time, and has been until very recently, that these sales were legal. The respondents so considered them» Under the belief that Stewart had a good title, he paid the taxes-to extinguish the Indian title in 1805, and other taxes.for surveying and allotting the lands. The respondents knew where these lands or rights were situated in 1804. They have recognized all of our acts as having been done for them, and for their benefit.
    The complainant contended, on the trial of the action of ejectment, that if Stewart had no title whatever to the lands, the respondents were tenants in common in the whole fire tract; they said, we recognize you as our agent, or trustee, and will accept of the partition as made by you, but they adduced no precedent in their behalf to show that a mere stranger and volunteer could make a legal partition. No case of a higher or purer equitable claim can be presented to the consideration of this court. The complainant acted in good faith; he acted under the decisions .of different judicial tribunals, and prevented the lands of the respondents from being sold for taxes. It is a case in which a court of chancery ought to interfere, and if it was needful, to adopt a new principle to meet it. It will prevent speculators from hunting up-these claims, and purchasing them for mere nominal sums, and turning those out of possession who have made improvements, paid taxes, greatly advanced the value of the lands, and saved them from being sacrificed. The lands were sold for their full value, and for more than double the amount for which larga tracts of land were sold in the most fertile and now thickly inhabited parts of New York. In *doing justice to one individual, the court will dispense public justice by quieting, in some measure, the titles to the lands in Huron county, about one-fourth of which are held by sales made at public vendue in Connecticut. Legislatures and courts have endeavored to lessen as much as possible the evils incident to a general disturbance of the title to lands. Hence, limitation acts, giving a short period to contest a title, are frequently passed, and the successful claimant is compelled by other acts to part with his land at a reasonable price,, or pay to the occupant a reasonable compensation for the improvements he has made. Courts presume many things in favor of a person, who has been long in possession, and after a lapse of time,, adjudge possession to be conclusive evidence of title.
   By the Court:

The complainant in this cause having been ejected from land claimed by him, as owner, in consequence of a recovery against him at law, has filed this bill, seeking to be considered as trustee for the respondents, in all that he did to improve and preserve the lands in the character of absolute owner. The grounds upon which it is attempted to sustain this pretension are, that inasmuch as the identification of the land was the act of the complainant, and that identification is recognized by the respondents, as to this they admit an agency; and as the improvements and payments of taxes, were for the benefit of the respondents, equity may well consider these acts as performed in the character of agent, so as thus to be enabled to do justice to the parties.

We have carefully examined and considered the arguments advanced in support of these positions; but we find nothing in them to warrant us in giving to the acts of a party a character directly contrary to that in which those acts were performed. As a matter of fact, it is indisputable that the complainant did not act as the agent of the respondents, in any one of the matters in respect to which he claims compensation. He took possession of the land, not to preserve it for the respondents, but to occupy and improve it for himself. With this object, and for this purpose, he labored and paid money. And when the respondents ^asserted their right, he controverted it, and compelled them to establish it by a judicial proceeding. There is no allowable legal fiction, by which the court can so change the character of a transaction, as to con-. vert an adverse pretension into an agency for him whose right is resisted.

It is true the respondents have adopted the partition of the land as they have found it. But this conduct is no recognition of the agency of the complainant. It was competent for the owner to take the lands in the place they were assigned to him by others who had claims, whether the assignment was so made as to conclude him or not. This mere act of acquiescence can have no legal or equitable relation to the person on whose claim the assignment was made, and must be considered entirely independent •of every one concerned.

The complainant acted, in all that he did, as a volunteer. It is impossible to give him any other character. And there is not only no case, there can be no principle in which a mere volunteer can maintain a suit in law or equity for compensation; although there are many cases in which the party may be benefited by such interference, and in which an award of compensation would seem to be just. Nevertheless, were it once permitted that one man could volunteer his services to another, and coprce compensation, it would subvert the fundamental doctrines of contract, and open a door for incalculable mischiefs and litigations. The complainant’s counsel are too sensible of this, to assert that a mere volunteer can recover; hence, they attempt to establish an agency in their client, and dp not seem to perceive that to convert a volunteer into an agent, against the consent of the alleged employer, is but maintaining the principle abandoned, in different terms, differently applied.

The answer given by the defendant’s counsel, to the use made of the case of Nowler, Douglas and others v. Coit, is decisive upon its analogy to this case. Nothing is more common than for courts of equity, in decreeing a complainant the relief he seeks, to impose terms upon him, which could not be asserted against him in an original bill at the suit of the respondent. It is an ordinary principle of proceeding in equity, and results from the well-known maxim, that he who asks equity shall do it, or be denied the equity *he asks. In that case the complainant asked the court to quiet his title against claimants under a sale similar to that through which the complainant claimed in this case. And the court proceeded to decree in his favor, upon the condition that he should repay the taxes advanced, and remunerate the party foe his trouble in making the payment. And the decree is predicated upon the common principle, without an intimation that an original bill would have been sustained for that object. In this case the complainant reposed himself upon his adverse right until adjudged against him; and then, in direct contradiction of his former pretension, seeks to come before this court in a new character. Were we to sustain this bill, it could only be on a principle that would entitle every person who took possession of lands belonging to ethers, supposing he had title after he was ejected at law, to come into equity for aid and remuneration. This would certainly be an entire new branch of equitable jurisdiction, to which we are not disposed to be the first to assent.

It is not the mere fact of a recovery in ejectment that excludes the defendant from relief here; but it is the principle upon which that relief is sought, between which, and permitting a mortgagor to redeem after the mortgagee has recovered at law, we can perceive no analogy.

There is no weight in the suggestion that the respondents slept over their rights. They were not barred at law, and in equity the rule is not varied. There is not even a suggestion that they practiced any fraud in permitting the complainant to proceed in his improvements and payment of taxes. TJpon the- ground of fraud only, could a court of equity interfere where the statute of limitations does not apply at law, or by analogy, in this court.

The bill must be dismissed.  