chose, avail himself of a higher and more efficient remedy. The same course of argument applies with equal force to rights over chattels as well as over lands, wherever there can be an equitable ownership of chattels. § 102. I have now to compare the result of a discussion of the question upon principle with the doctrine which is established upon the authority of decisions thus far made; and I concede at the outset that in numbers the judicial decisions are decidedly opposed to my conclusions. In accordance with its general theory, that a distinction between legal and equitable actions is still preserved, the Supreme Court of Missouri has held, in a long series of cases, that the owner of an equitable title can under no circumstances obtain legal relief, but shall be driven to two actions, the first to turn the equitable into a legal estate, and the second to obtain possession. The same doctrine has been established in Wisconsin, and has been extended to waste, on the ground that the actions of ejectment and waste must be brought by one having the legal ownership, and that he must recover on the strength of his own title.2 It would seem that the same rule had been adopted in Indiana, although this is by no means certain. A series of cases have held that a plaintiff, alleging a legal ownership and right of possession, cannot recover upon proof of an equitable ownership; that an action to recover possession of lands, where the pleading contains such averments, is analogous to the common-law ejectment, and the plaintiff on a legal title, and not on an equitable title." In California the 1 Reed v. Robertson, 45 Mo. 580, and cases cited in the note to § 79. See, however, Henderson v. Dickey, 50 Mo. 161. In Reed v. Robertson the defendant was a trustee, and held the legal title in trust to convey the same to the plaintiff. It was adjudged that the plaintiff could not maintain a simple action for possession,called by the court ejectment, but must resort to a suit in equity to compel a performance of his trust by the defendant. The other case cited shows that the court of Missouri has modified its views in relation to relief of possession accompanying other specific equitable relief, but goes no farther. See supra, § 79, n. 2 Eaton v. Smith, 19 Wisc. 537; Gillett v. Treganza, 13 Wisc. 472, 475. The latter case was an action to recover posses "must recover sion and damages for waste, the complaint disclosing an equitable title in the plaintiff. Dixon C. J. said: "The actions of ejectment and waste, being legal remedies, must be brought by the person legally interested in the property, and cannot be maintained by a cestui que trust, or other party having only an equitable interest." Citing 1 Chitty's Pleadings, 60, 289, 290. One might have supposed that the code of procedure had somewhat lessened the authority of Chitty's Pleadings in regard to the forms of actions in that State. 3 Groves v. Marks, 32 Ind. 319; Rowe v. Beckett, 30 Ind. 154; Stehman v. Crull, 26 Ind. 436. In Groves v. Marks the action was called ejectment, The complaint alleged that the plaintiff was owner in fee-simple, and entitled to possession. doctrine is established in the most general form, that the holder of an equitable title cannot maintain an action to recover the possession, because, in the language of the courts, "in ejectment the legal title must prevail;" and a like rule seems to prevail in Iowa.2 § 103. In New York there is a conflict of opinion, as shown by the reported cases. The Supreme Court has held, in accordance with the doctrine laid down in Missouri, Wisconsin, and California, that the holder of an equitable title cannot recover possession, even against a mere intruder, but that he must first procure his equitable to be changed into a legal ownership by the judgment rendered in an equity action, and thus put himself in a condition to maintain ejectment. The Court of Appeals in New York has reached a conclusion directly the contrary in a case where the facts and the form of the proceeding made the decision necessary and final. The ruling was, therefore, not a dictum, but was the very ratio decidendi, and involved a principle which fully sustains the reasoning and doctrine of the text, although the which the complaint discloses an equitable title, and demands possession. 1 Emeric v. Pennin:an, 26 Cal. 119, 124; Clark v. Lockwood, 21 Cal. 222. See Hartley v. Brown, 46 Cal. 201; Buhne v. Chism, 48 Cal. 467, 472; also Morton v. Green, 2 Neb. 441. 2 Walker v. Kynett, 32 Iowa, 524, 526, per Beck J.: "It cannot be claimed that in an action at law lands may be recovered against one holding the legal title on the ground that his title is based on fraud. One holding such a title may successfully plead it against the equitable claim of another attempted to be enforced at law. In order to defeat a fraudulent title, it must be attacked in chancery, and in that forum declared void. A person holding the equitable title, in order to recover must cause the adverse legal title to be declared void." But see Brown v. Freed, 43 Ind. 253, 254–257. On the trial it appeared that the plaintiff was a vendee under a land contract. Gregory J. said (p. 320): "It is claimed that the plaintiff could recover in this form of action on an equitable title. We gave the question a careful consideration in Rowe v. Bennett; and the conclusion there arrived at is perfectly satisfactory to our minds. In an action under the code for the recovery of real property on a complaint averring the legal right of the plaintiff to the possession, he must recover on a legal and not on an equitable title." Rowe. Bennett presented exactly the same facts, and the court placed the decision upon exactly the same grounds. Stehman c. Crull was also a case of the same nature, and the court said: "The action to recover possession of real property under the code, where the complaint is on the legal title, takes the place of the old action of ejectment; and the plaintiff must show a legal title to the possession before he can recover." The case was there put on the ground that there was a complete failure of proof, and not a mere variance. These decisions do not establish a doctrine necessarily opposed to that which is advocated on principle in the text; they to § 68. do not pass upon the effect of an action in 3 Peck v. Newton, 46 Barb. 173. The plaintiff's title was equitable, in substance that of a vendee. The defendant, so far as the case shows, was without color of right. The complaint merely demanded possession. See opinion of Parker J. in note case did not in form present the naked question under discussion. A plaintiff who had only an equitable title was permitted to recover a judgment for possession, based upon a verdict, where no other relief was granted, against a defendant who held the legal title under a deed regular on its face. This decision goes to the full length of the doctrine which I have advocated; for, although the complaint demanded the specific equitable relief of cancellation and reconveyance as well as possession, yet on the trial, which was had before a jury, and was conducted in all respects like the trial of a legal action, these demands for relief were entirely ignored; the single question of the plaintiff's right to possession was submitted to the jury, and upon their verdict a judgment for possession was rendered, which was affirmed by the tribunal of last resort.1 In Kansas, under an express provision of the code, the holder of an equitable title may maintain an action to recover possession of the land.2 § 104. There is another class of actions which have been admitted by some courts as a consequence of the reform legislation, which could not have been maintained prior to the change. It was a familiar doctrine that one partner could not maintain an action at law against a copartner to recover any sum which was a portion of the firm assets, or to recover any sum claimed to be due by virtue of their common partnership dealing or joint undertakings, unless there had been prior to the suit an account stated and a balance agreed upon between them, or unless the defendant had expressly promised to pay the sum sought to be recovered. In other words, the plaintiff in his declaration was obliged to aver either the accounting together and the balance struck, or the express promise. If he did not, he would be either nonsuited at the trial 1 Phillips v. Gorham, 17 N. Y. 270. The complaint alleged the equitable title in the plaintiff. The question was presented in the sharpest manner on the trial by the requests made on the part of the defendant and by the charge of the court. The defendant asked the court to charge that the plaintiff was not entitled to a verdict, that he should have procured a judgment declaring the defendant's deed void, and then brought an action for the possession. The court refused this request, and instructed the jury that the plaintiff could recover in this action if the facts averred by him were found to be true. Although the Court of Appeals does not in its opinion discuss the question in the form now presented by me in the text, its decision, as it seems to me, necessarily involves that question, and answers it in the most explicit manner. If the complaint had not contained the prayer for equitable relief, which was disregarded, the question would have been the same in form with that under consideration. Also, Murray v. Blackledge, 71 N. C. 492. 2 Kansas Pac. R. R. v. McBratney, 12 Kans. 9. or his pleading would be held insufficient on demurrer. If there had been no such account stated or express promise, his only remedy was by an action in equity for an accounting; and, having obtained jurisdiction of the matter, the Court of Chancery would decree payment of the amount due. This doctrine is too familiar to require the citation of authorities in its support. The Supreme Court of Indiana has held that this rule is abrogated by the code of procedure, and that a partner may maintain an action to recover a sum due from his copartner, by reason of their joint business, without averring or proving any settlement or express promise. The same doctrine has been applied in Missouri to owners in common generally who are not partners.2 The old rule is retained, however, in most of the States; and an action by a partner to recover a sum of money from his copartner, alleged to have become due by reason of their joint undertakings, is not permitted, unless based upon a mutual settlement or an express promise. It is so held in California,3 and in New York,1 and in other States; 5 and this is beyond doubt the correct interpretation of the codes. The contrast between this case and the one previously discussed is plain; and an analysis of these contrasting features will do much toward elucidating the general principles which regulate the union of legal and equitable actions and remedies. When a person has an equitable ownership of land of a kind which entitles him to immediate possession, his remedial right to possession is in exact conformity with his primary right of ownership. The denial of this remedy of simple possession under the former system was based solely upon technical and arbitrary notions incidental to the mere external forms of actions and modes of adjudication which prevailed in the two classes of courts; and when these external forms, with their incidents, were 1 Heavilon v. Heavilon, 29 Ind. 509; Shalter v. Caldwell, 27 Ind. 376; Duck #. Abbott, 24 Ind. 349. The last case is directly in point; for the complaint alleged the partnership, and sought to recover the plaintiff's share in the proceeds. See also Jemison v. Walsh, 30 Ind. 167. But, per contra, Briggs v. Daugherty, 48 Ind. 247, 249, seems to abandon this position. 2 Rogers v. Penniston, 16 Mo. 432, 435. Russell v. Byron, 2 Cal. 86; Buckley r. Carlisle, 2 Cal. 420; Stone v. Fouse, 3 Cal. 292; Barnstead v. Empire Mining Co., 5 Cal. 299; Ross v. Cornell, 45 Cal. 5 Wood v. Cullen, 13 Minn. 394, 397; Lower v. Denton, 9 Wisc. 268; Shields v. Fuller, 4 Wisc. 102; Smith v. Smith, 33 Mo. 557; M'Knight v. M'Cutchen, 27 Mo. 436; Springer v. Cabell, 10 Mo. 640. But see, for examples where an action may be maintained, Whitehill v. Shickle, 43 Mo. 537; Seaman v. Johnson, 46 Mo. 111; Russell v. Grimes, 46 Mo. 410; Buckner v. Ries, 34 Mo. 357. removed, a way was opened for redressing the primary equitable right in a manner exactly conforming with its own nature and extent; that is, a primary equitable right or interest calling for possession can be redressed by granting possession. In other words, the ancient rule denying to an equitable owner the remedy of bare possession in the cases described was one of the "distinctions" and "forms" in express terms abolished by the legislature in enacting the new procedure. Courts which continue the denial because "ejectment could not be brought by a holder of an equitable title," or because "the legal title must prevail,” overlook the real nature both of the right to be redressed and of the remedy to be conferred, and pay a regard only to the technical notions of form which hampered the common-law courts in all their movements, and which became at last so grievous a restraint upon the administration of justice that the legislature was compelled to intervene. In the other case, however, the reasons of the rule were very different, and were founded upon the nature of the primary right itself, and not upon any formal incidents of the judicial proceeding by which it was redressed. A partner is not suffered to maintain the action in question because his primary right, flowing from the fact of partnership, is not of such a nature as to call for a remedy of that kind; that is, a judgment for the payment of a certain sum. The right to the recovery of a certain sum of money, unless arising from tort, must, according to the common-law, be based upon a promise express or implied. It does not affect this principle to say that the common-law doctrine of implied promises was itself largely founded upon a fiction. Granting this to be true, as it undoubtedly was, still the theory was firmly established that the liability spoken of arose either from an express promise or from acts, events, or relations which created a duty to pay, and which duty the law conceived of as springing from an implied promise. If we discard the notion of an implied promise, therefore, as fictitious, there must still be a relation existing between the parties, from which the duty takes its origin; and without the existence of such a relation there was no duty on the one side, and no primary right on the other. Now, it was an elementary doctrine of the law pertaining to partnership that, resulting from their mutual dealings with their joint assets, no promise is ever implied that one partner shall pay to the other any definite sum as the |