2é rsonmn anromnn. ·
Upon the coming in of defendant’s disclaimer the complainant took
no further proceedings as to the portion of the tract covered by it,
and the cause proceeded and the judgment was with reference to the
portion as to which possession was not disclaimed. There was no
judgment upon the disclaimer. In fact no issue was joined upon it.
The judgment has precisely the same scope and effect as if the bill,
as originally filed, had sought a. discovery and recovery of property
and fruits as to the square occupied by the drainage machine alone,
and the other squares not included in the disclaimer. Indeed, after
the disclaimer it became necessary that the possessory actions against
the occupants should be commenced and terminated before this pres-
ent action would lie. An exception was made after the cause had
come back from the supreme court and was before the court upon the
master’s report, which presented the question whether the complain-
ant could treat the city as a trustee for the price received by her for
the Blanc tract. The question was solved by the court declaring that
in an ejectment bill against a party holding by an adverse title there
could be no trust raised up as to the price received, in case of sale of
a portion; i. c., that the whole aim of the bill was inconsistent with
the claim thus urged by the exception. This ruling and decree can
by no construction be made to be adverse to, or even relate to, the
claim presented here. This claim is not only not inconsistent with
the ejectment suit, but follows and could only follow as a consequence
from that suit and the recovery in the possessory suits. The reve-
nues upon which the master has reported are those derived or deriv-
able from lands not included in the suit No. 2,695, after the dis-
claimer and not embraced in the judgment.
(7) That some of the judgments against the tenants (in the Agnelly
and Monsseaux suits) were irregular and fraudulent. The evidence
which seems to be relied upon is that in some of the instances, in which
judgments pro corycsso were entered, the subpmnas are not in the ree-
ords. This by no means overcomes the prima facie ease made by
the judgment itself, as it cannot be presumed the court would have
rendered it without proof of service of process. I do not find that
the special defenses are in any respect sustained.
The exceptions to the report of the master are for the most part
treated and disposed of in the subsequent portions of the opinion.
As to those not there discussed which have been filed by the defend-
ant:
(1) As to the order of reference. I take it, it is not to be dis-
puted that the court may order a reference of any part of an equity
cause, whenever, in its opinion, the ends of justice require it, and
the matter referred can be considered bythe master consistently with
the rules of pleading and evidence. 'l`his order was made by the
court in anticipation of the long time necessary to take and state
this intricate and prolonged account, and with the purpose of putting
into force the condition and stipulation (upon which the judgment