plied to defendant's answer, denying all allegations thereof, "but admits that defendant received the stone named, and many more." The reply contains this language: "Says there was some kind of a contract between him and the defendant by which he was to pay for the stone in the quarry, but said such contract was without consideration in this: that defendant represented to plaintiff that he was the owner of the stone when they lay in the quarry in the bed of the Des Moines river, and plaintiff agreed to pay for the stone on the theory that defendant was the owner of the same, but that he has since ascertained that defendant never had any title to the bed of the river at that place." Defendant filed an amended answer showing that he was in possession of the quarry, and made with plaintiff a parol contract to the effect that defendant would permit plaintiff to quarry stone in the quarry, and take them out over the land of defendant, and deposit them on defendant's land, on condition that he would deliver defendant 15 per cent. of the stone quarried, and that defendant was not to pay plaintiff for the stone, or for the labor of quarrying them. The plaintiff filed a reply to this amended answer, making his reply to the original answer his reply to this amended answer.

2. Under the decision of this court in this case when here before, defendant has no title to the land upon which the quarry is situated, and no right to the stone quarried therefrom. Therefore, there was no consideration for the contract under which the stone was delivered to defendant by plaintiff. 72 Iowa 65, 33 N. W. Rep. 366. That there was a contract under which plaintiff delivered the stone for which suit is brought is admitted by plaintiff, while not admitting its terms and conditions as stated by defendant. But he admits, in effect, that the stone was received by defendant upon a contract under which he was bound to pay for them. The contract, it clearly appears, was for future receipt of and payment for stone by plaintiff. It was therefore an executory contract which plaintiff performed. He cannot, after having voluntarily performed it, and received its fruits, without being disturbed in their enjoyment, set up the want of consideration. Maxwell v. Graves, 59 · Iowa 613, 13 N. W. Rep. 758; Bish. Cont., §§ 50, 81.

The existence of a contract and the receipt of the stone by plaintiff under it, is admitted by the pleading; and there is evidence tending to establish it. We need not inquire as to the terms and conditions. It is sufficient to know that plaintiff received the stone, and used them without disturbance under the executory contract, and upon these facts there can be no doubt, and there may be said to be no conflict in the evidence. He cannot, as we have seen, set up want of consideration after having received the fruit of his executory contract, and never having been deprived thereof. Upon these considerations the court below should have entered judgment against plaintiff. The judgment for plaintiff, in this view of the case, is wholly without the support of evidence.

Other questions in the case need not be considered, as the judg

ment of the court below must be reversed, and they may not arise in another trial. Reversed.

5. IMPROVEMENTS PUT BY MISTAKE UPON THE PROPERTY OF ANOTHER.

WILLIAMS, ADMINISTRATOR, v. GIBBES AND ANOTHER, EXECUTORS, GIBBES AND ANOTHER, EXECUTors, v. WILLIAMS, ADMINISTRATOR.

20 How. (U. S.) 535-1857.

THESE were cross appeals from the Circuit Court of the United States for the district of Maryland. In the report, the first case only will be mentioned; namely, that of Williams against Oliver's executors. The case was formerly before the court, and is reported in 17 How. 239.

The decree was for $9,686.33 in money, and $19,215.95 in stock, instead of $22,866.94 in money, and $32,847.77 in stock, as claimed by the appellant.

MR. JUSTICE NELSON.-This is an appeal from a decree of the Circuit Court of the United States for the district of Maryland. A bill was filed in the court below by Williams, the present appellant, to recover of the defendants the proceeds of the share of complainant's intestate in what is known as the Baltimore Company, which had a claim against the Mexican government, that was awarded to it under the treaty of 1839. The proceeds of the share amounted to the sum of $41,306.41. The history of the litigation to which the award. under the treaty gave rise, in the distribution of the fund among the claimants or the assignees composing the Baltimore Company, will be found in the report of four of the cases which have heretofore come before this court-11 How. 529; 12 How. III; 14 How. 610; 17 How. 233, 239. That of Williams v. Gibbes, in 17 How., contains the report of the present case when formerly here. This court then decided that the claim of the executors of Oliver to the share of Williams was not well founded; that the interest of Williams in the same had not been legally divested during his lifetime; and that his legal representative then before the court was entitled to the proceeds. The decree of the court below was reversed, and the cause remanded for further proceedings, in conformity with the opinion of the court. Upon the cause coming down before that court on the mandate, the defendants, the executors of Oliver, set up several charges against the fund, which it was claimed should be received and allowed in abatement of the amount.

I. For certain costs and expenses to which they had been subjected in resisting suits instituted against it by third parties. The

history of these suits will be found in the cases already referred to in this court, and need not be stated at large.

2. For services and expenses of Oliver in his lifetime, in the prosecution of the claim of the Baltimore Company, as its attorney and agent before the government of Mexico, from the year 1825 down to the time of his death in 1834.

The court below allowed to the executors the costs and expenses to which they had been subjected in defending the suits mentioned, and also thirty-five per cent. of the fund in question for the services of Oliver.

The case is one in many of its features novel and peculiar. James Williams, the intestate, and owner of the share in the Baltimore Company, became insolvent in 1819, and took the benefit of the insolvent laws of Maryland; and in 1825 the insolvent trustee of his estate sold and assigned to Robert Oliver the share in question in this company; and from thence down to the year 1849, Oliver in his lifetime, and his executors afterwards, did not doubt but that a perfect title to the share had passed by virtue of this assignment. In that year the Court of Appeals of Maryland decided, in a case between the executors and an insolvent trustee of Williams, that no title passed to Oliver by this assignment; and as a legal consequence it was held by this court, in 17 How., that the interest remained in Williams at his death, and of course passed to his legal representative, the complainant. All the services and expenses, therefore, of Oliver, in his lifetime, in the prosecution of the claims of the Baltimore Company against the government of Mexico, and of the litigation since encountered by his executors in respect to the share, have resulted in securing the proceeds of the same to the estate of Williams, the original shareholder. Williams in his lifetime, and his legal representative since, down till the fund was in court awaiting distribution, had taken no steps for its recovery, nor had they been subjected to any expense. The whole of the services had been rendered and expenses borne by Oliver and his executors; and the question is whether, upon any established principles of law or equity, the court below were right in taking into the account, in the settlement between the parties, these services and expenses. We are of opinion they were.

By the judgment of the Court of Appeals of Maryland, Oliver was at no time the true owner of this share; as, notwithstanding the assignment by the insolvent trustee, it still remained in Williams. Oliver thereby became trustee instead of owner of the share and of the proceeds, as did also his executors; and they must be regarded as holding this relation to the fund from their first connection with it. In that character the executors have been made accountable to the estate of Williams, and have been responsible since the fund came into their possession for all proper care and management of the same. In defending these proceeds, therefore, against suits, instituted by third parties to recover them out of the hands of the executors, they have done no more nor no less than they were bound

to do as the proper guardians of the fund, if they had known at the time the relation in which they stood to it, and that they were defending it for the benefit of the estate of Williams, and not for that of Oliver. The services rendered and expenses borne could not have been dispensed with, consistent with their duties as trustees.

But it is said that these suits were defended by the executors while claiming the fund in right of their testator, and hence for the supposed benefit of his estate; that the defense was not made in their character of trustees, and cannot, therefore, be regarded as a ground for charging the estate of Williams with the costs of the litigation. The answer to this view is, that although in point of fact the defense was made under the supposition that the fund belonged to the estate of Oliver, yet in judgment of law it was made by them as trustees and not owners, as subsequently judicially ascertained; and as the costs and expenses were properly incurred in the protection and preservation of the fund, it is but just and equitable they should be made a charge upon it. The misapprehension as to the right cannot change the beneficial character of the expense, when indispensable to its security. The duty of a trustee, whether of real or personal estate, to defend the title, at law or in equity, in case a suit is brought against it, is unquestioned; and the expenses are properly chargeable in his accounts against the estate. 2 Story, Eq. Jur., § 1275.

Another principle which we think applicable to this case is to be found in a class of cases where a bona fide purchaser for a valuable consideration, without notice, has enhanced the value of the property by permanent expenditures, and has been subsequently evicted by the true owner on account of some latent infirmity in the title. It is well settled, if the true owner is obliged to come into a court of equity to obtain relief against the purchaser, the court will first require reasonable compensation for such expenditures to be made, upon the principle that he who seeks equity must first do equity. 2 Story, Eq. Jur., $$ 799, 7996; 6 Paige, 403, 404; 1 Story Rep. 494, 495.

A kindred principle is also found in a class of cases where there has been a bona fide adverse possession of the property tacitly acquiesced in by the true owner. The practice of a court of equity in such cases does not permit an account of rents and profits to be carried back beyond the filing of the bill. 8 Wheat. 78; 27 E. L. & Eq. 212; 7 Ves. 541; 1 Edw. Ch. 579. This principle is applicable where the person in possession is a bona fide purchaser, and there has been some degree of remissness or negligence or inattention on the part of the true owner in the assertion of his rights.

Courts of equity, it would seem, do not grant active relief in favor of a bona fide purchaser making permanent meliorations and improvements, by sustaining a bill brought by him against the true owner, after he has succeeded in recovering the property at law. 6 Paige 390, 403, 404, 405; 1 Story R. 495; 8 Wheat. 81, 82. The civil law in this respect is more liberal, and provides a remedy in

behalf of the purchaser, even beyond an abatement of the rents and profits for such expenditures as have enhanced the value of the estate (cases above), and indeed generally applies the principle in favor of any bona fide possessor of property who has in good faith expended his money for its preservation or amelioration; otherwise, it is said, the true owner appropriates unjustly the property of another to himself. Touillier, 3 B., tit. 4, c. I, ss. 19, 20.

Now in the case before us, Oliver in 1825 purchased this share in the Baltimore Company for the consideration of $2,000, its full value at the time. The purchase was made from the insolvent trustee of Williams, whom all parties concerned believed had the power to sell and transfer the title. Williams, down till his death in 1836, set up no claim to it; nor did his representative after his death, till August, 1852, when this bill was filed. Oliver and his executors had been in the undisturbed possession, so far as respects any claim. under the present right, for the period of twenty-seven years. And although it may be said in excuse for any remissness, and by way of avoiding the consequences of delay, that Williams and those representing him had no knowledge of the defect in the title till the decision of the Court of Appeals of Maryland, it may be equally said, on the other hand, that Oliver and his executors were alike ignorant of it, and had in good faith expended their time and money in recovering the claim against the government of Mexico, and afterwards in defending it against a long and expensive litigation. It is difficult to present a stronger case for the protection of a bona fide purchaser from loss, who has expended time and money in enhancing the value of the subject of the purchase, or a case in which the principle more justly applies that where the true owner seeks the aid of a court of equity to enforce such a title, the court will administer that aid only when making compensation to the purchaser. We are therefore of opinion that the court below was right in allowing in the account the costs and fees paid to counsel by the executors in the defense of the suits.

In respect to the 35 per cent. allowed for the prosecution of the claim against the government of Mexico, it stands in principle upon the same footing as other services and expenses incurred in protecting and preserving the fund after possession was obtained. The amount of compensation depends upon the proofs in the case as to the value of the service, and which must in a good degree be governed by the usual and customary charges allowed for similar services and expenses. As this claim was prosecuted with others by Oliver when he supposed and believed that he was the owner, and that he was acting on his own behalf and not as trustee for Williams, the rate of compensation must rest upon all the facts and circumstances attending the service; there could have been no agreement as to the compensation. And for the same reason it cannot be expected that an account of the service and expenses was kept, so as to enable the court to arrive with exactness at the proper sum to be allowed, as might have been required if Oliver had been chargeable