
    
      Martin and Walter et al. v. Thomas Evans, Sen., et al.
    
    Where one purchased land at Sheriff’s sale, and the sale was afterwards declarclared void, and the land ordered to be resold, tire purchaser was held liable for the rents and profits, from the time of his purchase to the time of the resale, subject only to a deduction for the improvements which he had made.
    The only advantage a iona fide possessor, who supposes himself to be the actual owner, has over a mala fide possessor, is, that on recovery by the rightful owner, Equity will allow him to set off the improvements, made by him, against the rents and profits which have accrued since his possession.
    A right to land essentially implies a right to the profits accruing from it.
    
      On appeal from an order of His Honor, Ch. Johnston, made Feb 1847, refusing to overrule an order made by His Honor Ch. Dunkin, at Marion, February, 1846.
    In October 1842, William Evans purchased at Sheriff’s sale, certain real estate of Thomas Evans. Shortly after-wards a bill was filed by the execution creditors, to set aside the sale. In February 1844, a decree was pronounced, setting aside the sale, and ordering, also, that the land be resold by the Sheriff for their benefit, or in satisfaction of their claims, and that William Evans lie refunded any sums which he had actually paid on his purchase. Thomas Evans having in the mean time taken the benefit of the insolvent debt- or’s law — it was further ordered that the complainants have leave to make his assignee a party, and to apply for such further order or orders as might from time to time be deemed necessary. This decree was affirmed by the Court of Errors in May 1845.
    At Marion, February 1846, His Honor, Ch. Dunkin, made the following order.
    “ On motion of Harllee, complainant’s Solicitor, Ordered, that it be referred to the Commissioner to ascertain and report the value of the rents of the lands, ordered to be re-sold by the Court in this case, as also of the House and Lots in Marion Village, from the time of the purchase by William Evans, in October, 1842, to the time of the re-sale of the same by the Sheriff, under the order of this Court.
    At February Term, 1847, the Commissioner submitted the • following report:
    “ The Commissioner, to whom it was referred to ascertain and report the value of the rents of the lands, ordered to be re-sold by the Court in this case, as also of the house and lots in Marion village, from the time of the purchase by William Evans, in October, 1842, to the time of the re-sale of the same by the Sheriff, under order of this Court, begs leave to report :
    “The defendant, William Evans, urged at the reference, that he was not accountable for rents at all, and objected to the Commissioner’s taking an account, — which objection I overruled, upon the ground, that the order was imperative, and left me no discretion, and that this objection should have • been made to the Court, which ordered the reference, instead ■of allowing the Order to be made without opposition.
    I find the tracts of land referred to, to be known, familiarly, as the Alabama, Gasque, Legett, Lambert, Steam Mill, ■and Hay’s tracts, the annual value of the rent of which I find to be as follows :
    Gasque tract, - $150 00
    Alabama “ 150 00
    Legett “ 20 00
    Lambert “ 12 50
    275 00 House and Lots,
    I cannot, from the testimony, assign any value to the rent <of the Steam Mill, and Hay’s tracts.
    I find that the defendant has put improvements upon the house and lot, and the Gasque tract, to the value of two hundred and thirty dollars, ($230.) I find further, that the defendant, William Evans, has never -been in the actual possession of any of the said land except the Gasque tract, and the House and lots.
    The defendant, in February, 1843, was enjoined and required to give bond in the penal sum of twenty thousand dollars, conditioned not to dispose in any manner of any of the above named tracts, until the further order of the Court. ‘The defendant being thus compelled to retain the possession, I am of opinion that he should be allowed, in deduction of rent, the value of such improvements as were necessary, and enhance the value of the property, more especially, (this being a proceeding on the part of creditors,) as they obtained a proportionate advancement in the price of the property, from these improvements upon the re-sale. I would therefore recommend that the defendant be allow the above named sum, out of the rents of 1843.
    I am of opinion that the defendant should not be charged with the rent of the lands from October, 1842, to January, 1843, as land for agricrdtural .purposes, for this period, can certainly be of no value to the party in possession. The lands were re-sold in September, 1845, before the crops were gathered, and the result of the labors of the year went into the hands of the purchaser. I am, for this, and the reason above stated, therefore, of opinion, that no rent for'this poriod of eight months should be charged to the defendant.
    “I have, however, charged the defendant with the value of the rent of the house and lots, from October, 1842, to January, 1843, and from Jauuary, 1845, to September, 1845, and have charged him with interest to September, 1845, upon the amount of the value of the rents of each year, from the 1st of January, in the succeeding year.
    “ Basing the calculation upon these principles, i. e. charging the defendant, William Evans, with the rent of the house and lots only, in 1842 and 1845, and allowing him a deduction for the improvements made in 1843,1 find, under the order of reference the value of the rents to be fourteen hundred and twenty-four 87-100 dollars, ($1424 87.)
    “If, however, the Court should he of opinion that there should be no deduction made for improvements, then, I find the amount to be fifteen hundred and seventy 64-100 dollars, (1570 64.) If the defendant is to be charged for the whole time, without reference to the seasons, at the rates fixed upon, he will be chargeable with the sum of nineteen hundred and fifty 4-100 dollars, (1950 04.)
    “And if he be allowed for the improvements, and charged for the whole of the time at the same rates, then the amount will be eighteen hundred and four 67-100 dollars, (1804 67.)
    “Without reference; then, to the abstract proposition of the defendant, William Evans’s accountability for rent, at all, which I did not consider, (not viewing it a question open for the decision of the Commissioner,) I recommend that he be charged, as above, with the sum of fourteen hundred and twenty-four 87-100 dollars, (1424 87.)
    “All which is respectfully submitted.
    “R. B. Boyleston, Commissioner.”
    Upon the hearing of the report, Mr. Miller moved the Court for leave to enter the following order:
    “ On motion of C. W. Miller, solicitor for William Evans, it is ordered that an order of this Court, made at the last sitting of this Court, in February, 1846, referring it to the Commissioner to report upon the value of the rents and profits of the land ordered to be re-sold Try the Court in this case, be rescinded.”
    On hearing counsel the motion was refused by Chancellor Johnston, Feb. 12, 1847.
    • His Honor, Chancellor Johnston, then made the following order:
    “ On motion of Harllee, complainants’ solicitor, it is ordered, that the report of the commissioner, on the rents and profits of lands, (ordered to be re-sold,) be confirmed, and that the defendant, William Evans, pay to the Commissioner of this Court the sum of fourteen hundred and twenty-four 87-10.0 dollars, according to the recommendation of the said report
    “And it is further ordered that the said sum, when collected, be distributed among the judgment creditors of Thomas Evans, fro rata."
    
    From this order the defendant, William Evans, appealed, and moved the Court of Appeals to reverse the order of the Circuit Court, made at February sitting, 1846, ordering the Commissioner to report the value of the rents and profits of the real estate, ordered to be re-sold, from the sale in 1842 till the resale in 1845, on the grounds:
    1. That the defendant, William Evans, was not bound to account for the rents and profits, after his .purchase, in the year 1842, because the bill does not pray for such account, and because, on decreeing him to be refunded the purchase money, on setting aside the sale in 1842, no interest was ordered to be refunded, and because he is not bound, on any principle, to pay rent.
    2. That the Chancellor held this last objection to be excluded, after the said order was made. The Circuit Court, at the present sitting, having overruled a motion to rescind the order above referred to, the defendant appeals, and will renew his motion to rescind, in the Court of Appeals, on- the ground—
    That the said order was made without notice to the defendant, and to his surprise, and was an administrative order, within the power of the Circuit Court to rescind the same, and that the Circuit Court should have rescinded the said order. The defendant will move the Court of Appeals to reverse the order confirming the report of the Commissioner, at the present sitting of the Circuit Court, on the ground—
    That the defendant, William Evans, is not liable, on any principle of law or equity, to pay the rents and profits reported against him in the said report.
    Miller, for the motion.
    Harllee, contra.
    
   Dunkin, Ch.

delivered the opinion of the Court

On the 3d October, 1842, William Evans purchased at sheriff’s sales certain réal estate of his brother, Thomas Evans. Immediately, or very soon afterwards, a hill was filed by the execution creditors, to set aside the sale. A decree was pronounced in February, 1844, setting aside the sale, in which it was adjudged, among other things, that the land should be re-sold by the sheriff, and the proceeds be appropriated by him to the discharge of the legal Hens against the defendant in the executions, and that the sheriff should refund William Evans any sums which he had actually paid, on account of his purchase, in October, 1842. Thomas Evans having, in the meantime, taken the benefit of the insolvent debtor’s law, it was ordered that the complainants have leave to make his.assignee a party, and to apply for such further order or orders as might, from time to time, be deemed necessary.” This decree was'affirmed by the Court of Errors in May, 1845. At the February sittings, 1846, of the Circuit Court, at Marion, the Commissioner was ordered to ascertain and report the value of the rents of the real estate, from the time of the purchase by William Evans to the time of the resale by the sheriff, under the order of the Court. The Commissioner made his report in February, 1847, setting forth the value of the rents, so far as it could be ascertained; stated that, the defendant., William Evans, had put improvements on the Gasque tract, and the house and lots in the village, the value of which improvements, he recommended, should be allowed to him; and that he had never been in the actual possession of any other of the tracts. It does not appear that any exceptions were filed to this report, but a motion was made to rescind the order of reference of February, 1846, which motion was refused by the Court, and the report of the Commissioner confirmed.

It seems only necessary to determine the general question whether the defendant, Wm. Evans, was accountable for the rents and profits of the real estate, between the time of receiving the sheriff’s title, under the sale of October, 1842, and the resale, in 1845, and whether an order to that effect could be made after the decree of February, 1844. In respect to the latter question, it may be remarked that, for the rents and profits the execution creditors of Thomas Evans had no lien, and in the distribution of them were entitled to no preference. It was, therefore, a proper precaution, that his assignee, under the insolvent law, should be made a party before an order to account, and leave was given by the decree to make him a party, and also to apply for such further order or orders as might be deemed necessary.

It is insisted, however, that William Evans is not liable to account for rents and profits, because, until the decree of the Court, he supposed himself the actual owner, and, although the sale was set aside, no moral fraud was imputed to him. But there is no authority for this position. “A right to land essentially implies a right to the profits accruing from it.”— “ For what,” says Lord .Coke, “ is the land, but the profits thereof.”—Co. Litt. 46; Lyford’s case, 11 Co. 46. The rule of the English of Court of Chancery is, that equity allows an account of rents and profits, in all cases, from the time the title accrued, provided it does not exceed six years, unless under special circumstances, and under these special circumn stances the account is confined to the time of filing the bill. 1 Madd. Ch. 72. In Dormer vs. Fortescue, 3 Atk. 123, Lord .Hardwicke observes, “ Nothing can be clearer, both in law and equity, and from natural justice, than that the plaintiff is entitled to the rents and profits from the time when his title accrued.” He afterwards says, “Where the title of the plaintiff is purely equitable, the court allows the account of rents and profits from the time the title accrued, unless under special circumstances,” when the account, as has been stated, is restricted to six years, or the time of filing the bill.

The doctrine was very fully discussed in the Supreme Court of the United States, in Green vs. Biddle, 8 Wheat. 1. After an examination of the authorities, Mr. Justice Washington declares that the court held it perfectly clear, that the succesful claimant was entitled to an account of rents and profits. He says, “ We are not aware of any common law case which recognizes the distinction between a bona fide possessor and one who holds mala fide, in relation to the subject of rents and profits; and we understand Lyford’s case as fully proving that the true owner of the mesne profits is equally valid against both. How far the distinction is recognized in a Court of Equity has been already shewn,” namely, by restricting the account for rents and profits, under special circumstances, to six years, or the filing of the bill.

In Dellett vs. Whitner, Cheves Eq. 213, these principles are reiterated, and the advantage of a bona fide possessor— “one who supposes himself to be the rightful proprietor”— is stated, to wit, that Chancery will permit him to set off the value oí any lasting, permanent improvements against the account for rents and profits, but never to exceed that account. Supposing the defendant to be a bona fide possessor, who not only supposed himself to be the true proprietor of the land, but who was ignorant that his title was contested, he is bound to account for the rents and profits, subject only to his claim for improvements.

It is hardly necessary to say that the creditors or the assignee of Thomas Evans stand in his place. No title passed by the sheriff’s sale, which was declared void, and the defendant in the execution was still the rightful owner. The defendant, William Evans, has been allowed his discount for improvements to the premises, and has thus been permitted to occupy the most favorable position recognized by this Court. It is ordered and decreed that the appeal be dismissed,

Johnston, Ch. and Caldwell, Ch. concurred.  