#### JOHN B. BAKER et Ux. v. REBECCA CARSON.

Where one having- a remainder in fee inland, went into possession and made permanent improvement at the request of the tenant for life, it was held, Daniel, Judge dissenting, that a Court of Equity, would restrain the tenant for life, from resuming the possession until he had paid for the betterments, although there was no note os? memorandum in writing made of the transaction.

The case made by the pleadings and proofs was, that the late husband of the defendant, the father of the feme plaintiff, had by his will, given the estate to his wife for life, with a remainder to his children: that after his death the plaintiff intermarried: that the plaintiff John, was at his marriage, settled upon land situate several miles from the defendant, and continued to reside there until the month of January following his marriage: that the defendant being anxious to have her daughter, the wife of the plaintiff, near her, stated to him that the land devised to her for life, and in which his wife had a remainder in fee, in common with her sister, was in a great measure uncleared, and she proposed that a division of it should take place between the tenants in common in remainder, and that the plaintiff should take possession of such part of it as might be assigned to his wife, and there make a settlement. The defendant offered in case this was done, to release to the plaintiff her life estate in the *382land.. This plan was, at the earnest entreaty of the defendant, carried into execution, and the premises were greatly improved by the plaintiff, who resided on them for several years, but having neglected to take a conveyance of the defendant’s life estate, she had upon some disagreement with him, commenced an action of ejectment to turn him out of possession.

June, 1836.

The bill prayed for a conveyance of the defendant’s life estate, or for an injunction, to restrain the defendant from prosecuting her action unless she would pay the plaintiff for the improvements made by him upon the land. The defendant by plea relied upon the act of 1819 (Rev. ch. 1016) avoiding parol contracts for the sale of land and ¡slaves.

The case was argued several terms ago, by

Devereux, for the plaintiff, and

Mordecai, for the defendant; and continued under advisement until this term.

Ruffin, Chief Justice.

-The plaintiff, Lisitta Baker is the owner in fee of the tract of land described in the bill ■subject to the life estate of the defendant, and one object of the bill is to enforce the execution of an agreement, on ■the part of the defendant, to convey this life estate to the said plaintiff. So far as the bill seeks this relief, it must be dismissed. The alleged agreement is by parol, and the defendant insists on the act of 1819, which declares all such parol agreements void, in law and in equity. But the bill asks for relief of a different kind. It prays that the defendant may be enjoined from turning the plaintiff John, out of possession, unless she will make him a reasonable allowance for the valuable improvements he has put upon the land. This claim to relief is not founded upon, the supposed existence of any contract of which it seeks execution, or for the' breach of which it asks compensation, or damages. It is an appeal to the Court to prevent jraud. The case made is, that the plaintiff entered upon this land by the license of the defendant, and, therefore, was not a wrongdoer; that the land was then in woods, wholly useless and unproductive; that he reclaimed the *383and, made it fit for cultivation, built his dwelling, and put other valuable and lasting improvements upon it; and all this was done, not only under the eye of the defendant, but upon her assurances that he should not be turned out of his home, nor deprived of the fruits of his labour: that she has thought proper to revoke this license, is about to eject him at law, and thus appropriate wholly to herself the improvements, which, by these misrepresentations, she has procured to be made.

It is difficult to explain the grounds on which this relief is asked for, more distinctly that appears from a statement of the case. It is a misrepresentation, I thirik, to suppose that the plaintiff asks damages. He prays that the defendant may be restrained from the exercise of her legal power to turn him out of house and home, unless-she will consent to do what conscience requires — make him an equivalent for the worth of his labour, dishonestly .taken to herself. The bill does not ask compensation for work and labour done at the request of the defendant, for ’ it was not for the defendant’s benefit, but for his own, and on an assurance, which she cannot in conscience violate, that he should have the benefit thereof.

It is needless to determine whether any action could lie at law to get compensation for the labour, if she should be permitted to wrest the fruits of it from him'; for if it could, it must be on the principle, that to prevent so flagrant an injustice, the law would, on a principle of equity, imply a promise to pay against the fact. A Court of equity does not entertain less abhorrence for fraud than a Court of law, and when it can exercise jurisdiction, will go as far to redress or prevent it. It seems to me it has here a plain jurisdiction,' by enjoining the defendant until she will da justice.

But I think there could be no adequate, and perhaps no remedy at law. An action for work and labour done, or money expended, will not lie,- except it be done for the use, and at the request of the defendant. When it has been done for his use, without a previous request, a subsequent acceptance may supply the want of that request. But where it was not done originally, for his use, but he *384gets the benefit of it because in law it was Ms, as an appurtenance of the property to which it is affixed, it is inconceiv-a^s to me how in law he can be made to pay for it. Can a man be made to pay where he gets nothing but his own ?

To hold that there is no relief either in law or in equity —that a man may be stripped of the entire fruits of his toil for years, by any one who can cajole him into the weakness of expending them on his land by assurances for a future title, is a doctrine which seems to be subversive of first principles.

This, I think, is a question altogether of a different nature from that in Denton v. Stewart, 1 Cox, 258; Todd v. Gee, 17 Ves. 273, and the other cases cited in the argument. It is not a case of damages for the non-performance of a contract, valid in law, which the defendant has disabled herself from performing, or is unable to perform, for the want of a title, or for compensation for a partial defect of title, or for a difference in the estate, from the description in the contract. Though equity, in cases of the latter kind, makes compensation out of the purchase money, it very properly, in the former, refuses to give damages, or entertain a bill in the alternative, for a conveyance, or for the damages or compensation. That is plainly a question of legal damages, which ought, therefore, to be left at law. The vendor gets no benefit by the labour of the plaintiffin such a case, for the very cause of the damage is, that the vendor is .not the owner of the estate. If he were, the court would compel a specific performance. As that cannot be, a decree for compensation is, in effect, a decree for the damages arising on the breach of the agreement. This case, on the contrary, is founded on the equity of the plaintiff against the defendant, as the owner of the estate, who takes it away, with its improvements, made by the plaintiff. The relief goes upon her unconscientious gains. True the plaintiff sets forth the contract, and asks for its performance. But that is not an alternative, in the sense before spoken of. It was necessary for him tó do so, that he might offer an acceptance on his part, without which he would have no equity; for he would have no right to compensation, if the defendant were willing to let him enjoy the fruit of his labour. He must, therefore, give her the elec*385tion. Having elected to take the land, the defendant ought to pay the plaintiff, not for the land, nor damages for a breach of the agreement, but for his labour, of which she fraudulently sweeps the profits.

As the case is supported by the proofs, I would not permit the defendant to eject the plaintiff, until she make a fair allowance for the value to her of the improvements, which he has made on the land. It may be, that this has fully been made through his use of the land, since the delivery of it was demanded. To enable us to ascertain what is just between the parties, let the Clerk and Master of Pitt inquire and report the additional value conferred on the defendant’s life estate in this land, by means of the plaintiff’s labour and expenditures thereon; and also the reasonable value of the use of the land since the 1st of January, 1831, when possession was required to be surrendered.

Gaston, Judge, concurred with the Chief Justice.

Daniel, Judge,

dissentiente: — This is not such an agreement, as a court of equity would have caused to have been specifically executed, previous to the passage of the act of 1819, requiring all contracts for the sale of lands to be in writing. The consideration not being of such a nature, as to induce the court to decree for the plaintiff. But the agreement being since the passage of the act, and being by parol, and the act relied on by the defendant, as to so much of the bill as seeks a conveyance; the plea must, of course, as to that be sustained. The bill then rests simply on a demand for damages, or compensation for work and labour done by the plaintiff, for the benefit of the defendant. I am of the opinion that a court of equity cannot aid the plaintiff on this part of his case. Courts of equity, (except in a few instance,) never decree damages or compensation singly, without other relief. And the granting compensation to purchasers is only a peculiar exception, incidental and ancillary to that jurisdiction, which the court possesses in giving relief, by enforcing a specific performance of contracts in matters of freehold. 2 Chitty’s Gen. Practice, 404. The cases of Denton v. Stew *386 art, 1 Cox, 258, and Rex v. Butterton, 6 Term, 554, have been cited as authorities in favour of the demand of the plaintiff. Denton v. Stewart has been impugned by other cases; and the rule is now established, that a bill cannot be sustained, having for its sole object an integral demand of compensation, unmixed with any circumstances showing that a plaintiff was driven to a court of equity for relief. Gwillim v. Stone, 3 Meriv. 237. Blow v. Sutton, 14 Ves. 128. Greneway v. Adams, 12 Ves. 309. In the case of Todd v. Gee, 17 Ves. 273, the Chancellor, (Lord Eldon,) declares his inclination to support the'course of previous authorities against that of Denton v. Stewart; observing that the power of a court of equity to give relief, in the shape of damages, is confined to cases where it has an opportunity of ordering compensation, out of the purchase money. In the case of Newham v. May, 13 Price, 749, coram, ■ Alexander; Lord Chief Baron, the bill was by a purchaser'of freehold ^houses, praying that the vendor might be decreed to refund and pay him a fair and reasonable compensation for the difference in the actual value of the property sold, and the stated value, as by reference to the rental, which, though in fact only eighty-nine pounds per annum, had been'represented by a broker, the defendant’s agent, to be one hundred and ten pounds; on the faith of that representation, the plaintiff had purchased at the sum of twelve hundred and twenty-five pounds. The Chief Baron, in giving his opinion, said, it is not in every case of fraud, that relief is to be administered in a court of equity. In the case, for instance,, of a fraudulent warranty on the sale of a horse, or any fraud upon the sale of a chattel, no one, I apprehend, ever thought of filing a bill in equity. The cases of compensation in equity, I consider to have grown out of the jurisdiction of the courts of equity, as exercised in respect of contracts for the purchase of real property, where it is often ancillary or incidentally necessary to effectuate decrees of specific performance. This, however, appears to me to be no more than a common case of fraud by means of misrepresentation, raising a dry question of damages — in effect, a mere money demand. Compensation will not be granted in equity for any loss *387sustained by the bargain in consequence of the vendor not being able to perfect his title; the remedy, if any, being at law. 1 Mad. C. P. 440. 1 Chitty’s Gen. Prac. 868. If the plaintiff should be dispossessed of the land by the defendant, then, whether he can recover damages at law, either in a general action on the case, or on an implied assumpsit for work and labour done, will be determined when the case occurs. I think the plea must be sustained, and the bill dismissed-. If the plaintiff be dispossessed by the defendant, I think the law would raise an implied assumpsit for work and labour done on the land, for the benefit of the owner.

Pee CuRiam. Decree accordingly.