Joseph P. Bradley

“ Leaving out of view, for the present, the secondary liability to which the city may be equitable bound to respond on its warranty of title to its grantees, is it true, in point of law, that the city is primarily liable in the manner above stated, with regard both to the time when it had possession itself, and also to the time when its grantees had the possession? ”

“ Is the possessor in bad faith-only technically such perhaps-bound to respond to the true owner, on recovery, for the thousands of bushels of wheat and corn and other produce that might have been raised on the land? ”

“ Notwithstanding this evidence, and a great deal more to the same purport, the master reasoned that, because some people improved their land, and obtained good revenues from it, the city of its grantees might have done the same; and that a possessor in bad faith is chargeable with all that can be made out of the property. ”

“ Under these circumstances, the grantees, who have lost their property, and who have thus been made liable in judgments for the rents and revenues, might themselves, before satisfying such judgments, have maintained a suit in equity against their guarantor, the city of New Orleans, to protect them from the adjudged liability to pay. An action at law would not lie until actual payment ”

“ Hull, 7 Mart. (N. S.) 112, 113, Judge MARTIN, delivering the opinion of the court in a case of mere technical possession in bad faith, said: 'The case appears peculiarly a hard one, as the defendant bought in moral good faith, with the knowledge of the only one of the plaintiffs who was of age, and from the aunts of all of them, who had been selected by their mother to protect their interests after her death, and as the plaintiff who was of age received from him her part of the price. ”

“ Witness did not think it produced a revenue whilst vacant, not well remembering, but inferring this from the fact of his building; for, says he, 'when vacant property produces a revenue you don't build on it to make it produce a revenue.' Another witness says that in the aggregate property has produced no revenue whatever since 1868, taking as data for his opinion the decreased assessed value of property. Another witness testified that in his opinion 2 1/2 per cent. or 3 per cent. is all that improved real estate could produce here ”

“ There are others who take a conveyance and go into possession in entire ignorance of any defect in their title, though they are technically possessors in bad faith, because by proper inquiry they might have discovered the defect. ”

“ First, it does not follow that, because small parcels of land in the suburbs of a city may be made profitable by cultivation and improvement, therefore the whole suburbs can be turned to account in the same way. There are hundreds of acres in the vicinity of Washington, for example, lying open and in common. A German gardener may purchase a small lot, and by his indistry make it produce a large revenue ”

“ New Orleans, and its decision was affirmed by this court in New Orleans v. Gaines, 15 Wall. 625. It is true that the complainant acquiesced in the decision of the circuit court in that case, and did not appeal; but that only left the decision standing as a precedent against her, all the more effective for such acquiescence. The common law certainly does not recognize any such rule as that contended for. The person who receives the rents and profits is the only person who is to respond for them. ”

“ It being conceded that the city or its grantees actually derived no rents or revenues at all from the property, the former is charged, instead, with interest, in many cases, for more than 40 years, on a false and inflated valuation, based on the sales of 1837, which were never carried out, and never could be, and, in addition, with interest upon that interest. It seems to us an enormous charge. ”

“ We cannot blame them for making resistance. Although bound by the decisions that have been made by this court in the matter, we cannot say, and no one can say, that there was not much evidence of a very strong character in favor of a contrary conclusion. In our judgment, there was no sufficient evidence that any rents or revenues were derived from the unimproved lands, either by the city of New Orleans or by its grantees ”

“ The first proposition is that the city of New Orleans is primarily liable for all the rents and revenues of the entire tract derived from the Clark estate and purchased from Evariste Blanc, for the entire period since 1837, down to the time of the decree. ”

“ But it would be impossible to convert the entire suburbs, consisting, perhaps, of more than a thousand acres, into market gardens, and beer saloons, or to build cottages or rows of houses on them to any advantage. The small examples are exceptions. Large outlying tracts have to abide the natural growth and spread of the city. ”

“ The grantees have been sued; judgment has been obtained against them; the city was sufficiently notified of the prosecution to be bound by the result as guarantor; indeed, the city practically conducted the defenses. The complainant, in her bill, alleges, and it is proved, that the defendants in those suits have demanded of the city that it pay or settle the said judgments, and protect them therefrom. The complainant also alleges in her bill that the said defendants are unable to pay the said judgments, except through the aid of the city. ”

“ As to the remainder of the decree, amounting to $1,348,959.91, being for rents and revenues, and 'value for use,' as the master calls it, of the unimproved land, we cannot concur in the decision of the circuit court. We think that that sum is made up and arrived at by a method entirely too unsafe and unreliable. ”