These cases abundantly show what is consonant to good sense and sound policy, as well as justice; that a tenant who commits waste by cutting timber, acquires no title to the timber which he thus unlawfully cuts, and, of course, can convey none; and further, that a bona fide purchaser from the tenant acquires no title, but is liable in trover to the true owner.

The facts of the case clearly show that the timber was unnecessarily, and, therefore, unlawfully cut by Frazer. The logs in question were therefore the property of the plaintiff. The nonsuit must be set aside, and a new trial granted; costs to abide the event.

Lushington V. Boldero

15 Beavan (Eng. Rolls Court), i. - 1851.

Petition for the payment of money out of court. Charles Boldero and Henry Lushington had successive estates for life in certain premises, without impeachment for waste. They became bankrupts and their assignees committed equitable waste by felling ornamental timber. They were compelled to pay into court the proceeds of said sales. This is the fund now in controversy.

The Master of the Rolls. - I shall first consider what would have been the effect if Charles Boldero had himself done this act. He was tenant for life without impeachment of waste, and having cut ornamental timber, the court compelled him to pay into court the amount for which the timber was sold; and, omitting all questions respecting intermediate life estates, the question now is, whether he or the reversioner was entitled to the income of that fund. The equitable doctrine applicable to this and other similar cases is this, that no person shall obtain any advantage by his own wrong. But it is manifest that the tenant for life may obtain very considerable advantage from his own wrong, if he were to cut down timber and obtain the interest of the fund; his income for life would be thereby increased beyond what it would have been if the timber had not been cut.

It has been observed, that in all the reported cases the rule has been applied to the corpus of the fund; but that, I think, ought not to vary my judgment, because it depends upon this equitable and just principle that no man shall obtain a benefit by his own wrongful act; the authorities, therefore, which lay down the principle in cases of corpus only, are equally applicable to any species of interest to be derived by a wrongful act.

It is then said that this is a case in which the court does not impose a forfeiture, but only requires restitution; and that to deprive the tenant for life of the income, it would be to inflict a penalty upon him, inasmuch as he would have had the enjoyment and advantage of the shade and most of the timber if it had not been cut. But this he deprives himself of by his own wrongful act, and for this reason the court refuses to give him any substitution or remuneration. It is also material to bear in mind, that if the timber had not been cut, it would have increased in value for the benefit of the reversioner, but that has been rendered impossible by the tenant for life having improperly cut it. If, therefore, it is impossible for the court to ascertain what portion of the interest ought to be attributed to the estate of the reversioner, and what portion to the enjoyment of the tenant for life, it is the tenant for life who has himself put the court into that situation, and made it incapable of arriving at a just conclusion. It is not a case in which the court can act on the principle of restitution. The case put, by way of analogy, of a tenant for life selling out the fund and being compelled to restore it, is inapplicable, because the tenant for life cannot in this case restore the subject-matter.

There may be a great number of cases in which the timber would become of great value when the reversion fell in; and it is impossible for the court to ascertain what portion of it would have been enjoyed by the reversioner if the wrongful act had not been committed. Undoubtedly the tenant for life does in some cases directly gain an advantage, but it is not by reason of his own act. Thus, where by the act of God a large quantity of timber is blown down by a storm, the produce is laid out in the purchase of stock, and the interest of the fund is paid to the successive tenants for life. So, upon the same principle, when timber is decaying, and it cannot benefit the reversioner to allow it to remain standing, the court, having ascertained that it is for the benefit of all parties, orders the timber to be cut down, and the produce to be invested, and the interest of the fund to be paid to the tenants for life in succession.

When, however, the tenant for life has committed the wrongful act which produces the fund, the court will not allow him to gain any benefit from it; but the reversioner takes the benefit arising from an accretion of the fund, in lieu of the accretion of the timber.

Can I look at this case in any different point of view, because the assignees, and not the tenant for life, have done the wrongful act? The assignees stand for these purposes exactly in the same situation as the tenants for life; they are bound by the same equities, and are exactly in the same position, and the same observations apply to both. Nor am I able to separate, or to distinguish the case of Sir Henry Lushington from that of Charles Boldero; because, if the two tenants for life had concurred together, and had agreed between themselves that the one in possession should cut the timber, and that they should divide the produce in certain proportions, the court would have prevented either of them from gaining any benefit from the wrongful act which they concurred in performing. Here, they are the assignees of both; and I am unable to find any principle which says that the assignees must not stand exactly in the same situation as the tenant for life would stand, and be bound by exactly the same equities. If Charles Boldero had died immediately afterwards, and Sir Henry Lushington had survived for a very long period, and the income of the proceeds of the timber had been applied during that period in payment of the joint creditors, they would have obtained a great benefit from the wrongful act of the assignees. I must hold them in exactly the same position as if the wrongful act had been committed by Sir Henry Lushington alone. I cannot separate the character of the assignees; they are assignees for the joint creditors and of the joint estate; and I consider that I must treat the case exactly in the same way as if the two tenants for life, one only being in possession, had concurred in the wrongful act of cutting the timber.