#### *Ballard vs. Stephenson.*

Chancery.

Case 76.

Error *to*the Hardin circuit; Paul I. Booker, Judge,

*Rescission of Contracts. Improvements. Rents. Assign* ments. Equity.*

Sale to Gilleland by Stephenson.

Bond for the land assigned Ballard, and judgment at law recovered.

Bill for injunction hy Stephenson.

Allegations and prayer of the bill.

June 14.

Judge Owsley

delivered the opinion of the court.

Stephenson sold two hundred acres of land to Gilleland, received forty or fifty dollars of the sale money, took Gilleland’s note for *the*residue of the price, and executed his bond to Gilleland for a conveyance of the title.

The bond for a conveyance was afterwards assigned by Gilleland to Ballard, who brought suit at law upon it against Stephenson, and recovered judgment against him for four hundred and forty dollars, that being the amount of the price which was contracted to be paid by Gilleland for the land, and interest thereon.

To be relieved against that judgment, Stephenson exhibited his bill in equity, with injunction, making both Gilleland and Ballard defendants thereto.

After setting out the *contract for the land,*and charging that but fifty dollars of the price had been paid by Gilleland, he alleges, that before the' bond for a conveyance, upon which the judgment at law was recovered, was assigned to Ballard, the contract about the sale of the land had been cancelled between him and Gilleland, and that the land has been occupied by Gilleland, and Ballard claiming under him, for several years; a reasonable compensation for the occupation and use of which he claims against them, and praysmot only that the judgment at law be perpetually *enjoined,*but also that a decree *365for tbe rent of the land be granted him, together with such further relief as the nature and equity of Ins case may demand, &c.

Gillelancl’s answei'-

Ballard’s an*swer aricJ*gajnst st<£" phenson,

0ecvoe of Ul0 circuit court,

Cancelment of the contract.

It seems that the assign*366roent of a bond for the conveyance of land, made after the cancelment of the contract between obligor and obligee, confers on the assignee the right to recover for the improvements obligee had made on the premises.

*365Gilleland protests against any decree being made against him; but his answer contains nothing of any advantage to either of the other parties, and need not be further noticed.

Ballard professes to know nothing of the contract having been cancelled, as charged in the bill; states that he purchased and obtained from Gilleland, for a full consideration, the assignment of Stephenson’s bond for a conveyance; alleges that the land, whilst in a state of nature, was taken possession of by Gilleland, under his purchase from Stephenson, and that valuable and lasting improvements have been since put upon the land, by him and Gilleland. He moreover insists, that if he be liable for rents, his liability should be measured by its value, clear of the improvements, which have been put upon the land by him and Gilleland, and he prays for a decree against Stephenson for the value of the improvements, &c.

The circuit court sustained Stephenson’s bill, decreed a perpetual injunction against the judgment recovered by Ballard at law, and dismissed Ballard’s cross bill, without prejudice to any other suit, and decreed cost in favor of Stephenson.

With respect to the alleged cancelment of the contract of sale, the case is free from all difficulty or doubt. The evidence contained in the record, satisfactorily proves, that before the bond was assigned by Gilleland to Ballard, the contract between him and Stephenson, in relation to the sale of the land by the latter to the former, had, by their mutual consent, been abandoned, and was to be cancelled and held for nought, so that if the case turned exclusively upon the cancelment of that contract, we should have no hesitation in sustaining the decree perpetuating the injunction against the judgment at law.

But the evidence in the cause goes also to prove, that lasting and valuable improvements were put *366upon the land by Gilleland before the contract was' agreed between him and Stephens on *to be*cancelled, and that, by the agreement to cancel the contract, it is also proved'that Stephenson was to pay for the improvements according to their value; so that it becomes necessary to enquire whether, as the assignee of Stephenson’s bond to convey the land, Ballard is not entitled beneficially to the compensation for the improvements, and whether or not, as he has recovered judgment at law upon Stephenson’s bond, he ought to be deprived of that legal advantage in a court of equity, without compelling Stephenson to do equity in paying for the improvements.

Payment for the improvements by the obligee to the obligor, made after his notice of the assignment, in such case, will be no defence to the claim of the assignee.

If, in such case, the assignee obtain a judgment for an alleged breach in the covenant to convey for the nominal amoun t of the consideration money and interest, *367and the obligor come with his bill alleging and shewing the prior cancelment of the contract, he must pay the balance of the improvements, after deducting the rents.

*366That Ballard is entitled to whatever compensation Gilleland had any just right to claim for the improvements, admits of *no*serious doubt. His right is not only inferable from the assignment which he holds of Stephenson’s bond *from*Gilleland, but the proof is clear, that, by the-contract between Gilleland and Ballard, the latter was to have the benefit of all claim. for improvements which the former had against Stephenson.

There is, it is true, some evidence conducing *to*show, that Stephenson and Gilleland have adjusted and settled the claim for improvements; but from the whole complexion of the evidence, it is quite evident, that if such a settlement has been made, it must have taken place after Stephenson knew that Ballard was beneficially entitled to compensation for the improvements, and of course the interest of Ballard cannot have been affected by such a settlement.

Entitled, therefore, to pay for the improvements, it is equally clear, that until justice is done to Ballard in that respect, Stephenson should not have the assistance of a court of equity in his favor, against the judgment recovered at law by Ballard. It is a maxim with courts of equity, as old as courts of chancery, and founded on the immutable principles of natural justice, that he that will have equity done to him, must do equity to the same person: Francis’Maxims, Eq. *2.*The propriety of the application of this maxim to the present case, is pecu*367Early striking. Stephenson claims to be relieved against a judgment, which has not only been recovered by Ballard at law, but it was recovered by him upon a bond given by Stephenson for the conveyance of the very land upon which the improvements were made; and not only so, but the improvements were made under the contract, in pursuance of which the bond was executed, and that bond was afterwards assigned to BallardWith the understanding that he was to be entitled to the improvements.

Complainant must do equity before he can ask it.

Mandate-

*Hardin*for plaintiff; *Darby*for defendant.

Instead, therefore, of decreeing a perpetual injunction against the judgment at law, the court should, through the intervention of a commissioner appointed for that purpose, have ascertained the value of the improvements which were put upon *the*land, *after*it was sold by’ Stephensqn to Ballard, and before the cancelment of that contract by them. The commissioner should also have been directed to ascertain the annual rent of the land, from the time the contract was canceled, in its then state of improvement, up to the time of taking the account, if at that time the land should be in the possession of Ballard; but if he should be not then possessed, the charge for rent should cease running at the time he quit the possession. He should also have been directed to ascertain the value of such improvements as have been put upon the land by Ballard. The' improvements made by Ballard, should have been then directed to be deducted from the amount of rents, and if any, balance of rents remained, that balance deducted from the value of the improvements made upon the land before the contract of cancelment; and if any balance of the value of the improvements remained, the injunction for so much should have been dissolved, and for the residue of the judgment, if any remained, the injunction should have been perpetuated.

The decree must be reversed, with cost; the cause remanded to the court below, and such proceedings there had as may not be inconsistent with the principles of this opinion, and the usages of equity.