Howard v. Massengale. vested in her, and therefore she can recover in this suit. Here lies the kernel of the controversy. From the record it is apparent that the title is either in Foster, Burt or complainant. Complainant in her bill as well as by claiming under the deed of 1873, admits that Foster's title has been conveyed to Burt; she alleges that Burt had conveyed it to her, no deed from him to her is shown ever to have been in existence. This leaves the legal title in Burt. But he could not maintain ejectment against defendants, for he has no available proof of his title against them; and, moreover, he admits that the title had passed from him before Graham bought of Massengale. Foster could not maintain ejectment against them, because he had conveyed to two different persons before their purchase. Is complainant also to fail hecause the strict. legal title appears to be in Burt? The defense of outstanding title is not favored in our courts, nor generally in America. To defeat an action of ejectment at law even, the outstanding title must be a present, subsisting, operative and available title, not one reverted, barred or abandoned: Peck v. Carmichael, 9 Yer., 325; Dickinson v. Collins, 1 Swan, 516; Self v. Haun, manuscript opinion, Knoxville, 187-; Salter v. Williams, 10 Ga., 186; Jackson v. Hudson, 3 Johns., 375; Foster v. Joice, 3 Wash. C. C. Rep., 498. Such a defense should receive still less favor in equity than at law; and where it appears that the probable holder of the legal title cannot, for lack of competent proof or other sufficient obstacle recover in Howard v. Massengale. ejectment, equity will be slow to deny relief to the equitable owner. Accordingly it has been ruled in many reported cases, and with good reason, that where a vendee under an unregistered deed has, without reconveying title, surrendered, cancelled or destroyed his deed, and consented that his vendor might convey the title to another person, and the same has therefore been done, such second vendee will thus obtain a good title, though in strictness the title had passed out of the vendor by the first conveyance and had never returned to him. For in such case, the deed to the second vendee being registered, the title would prima facie be in him; and this title the vendor would be estopped from denying by the deed itself, and the first vendee by his act in surrendering or cancelling his deed that the vendor might convey to another: Commonwealth v. Dudley, 10 Mass., 403; Holbrook v. Terrell, 9 Pick, 105; Faulks v. Burns, 2 N. J. Eq., 250; Lawrence v. Stratton, 6 Cush., 163; et vide Trull v. Skinner, 17 Pick, 213; 3 Washb. R. P., B. 3, ch. 4, sec. 2. True, there is lacking in this case the surrender or cancellation of the first deed for the purpose of enabling the vendor to make conveyance to another person. But in lieu thereof is a written statement by the first vendee that he had deeded or given the land to another; and to that person the vendor therefore makes the second conveyance. The deeds of Foster to Burt, and of Burt to complainant, if they were executed are unrecorded and probably lost. ever If Howard v. Massengale. they never were executed, then the recital thereof in Foster's deed to complainant is incorrect; and the title being in Foster in 1873 was conveyed to complainant. If the recitals are correct, then the title was already in complainant. But if Foster had made deed to Burt, but he had not made one to complainant, what is then the effect? Burt has given complainant the written statement, witnessed and acknowledged that he had deeded or given her the land; she exhibits that to Foster, who thereupon makes her the second deed. The loss of the deeds and the written statement of Burt for the benefit of complainant are the equivalent of a surrender or cancellation of Burt's deed. He certainly had abandoned his title or relinquished it in complainant's favor, and thus authorized Foster to make a muniment of title to complainant, as effectually as he could have done by surrender of his deed and direct request. Obviously there is here no present, subsisting, operative and availiable title in Burt, not barred or abandoned, such as is required to defeat an action of ejectment. Whatever he has of title, legal or equitable, he is equitably estopped from setting up against Foster or complainant; and she is entitled to recover the land from the defendants, who have neither title nor possessory rights. Respondents rely in their answers upon the plea of innocent purchasers, and ask allowance for betterments, placed upon the land by them respectively. Graham, from whom the present holders purchased, did not buy of Massengale until 1877, four years after complainant's deed from Foster was made and registered. He de Howard v. Massengale. poses, however, to his own good faith in the purchase, and to various circumstances, which corroborate his statement, and denies any knowledge of complainants title until about the time suit was brought. The subpurchasers bought relying upon his title, and none appear to have had knowledge of complainant's title until suit was brought; but all bought and made their improvements in good faith. These improvements are worth many times the value of the land. Complainant ought not in equity to have the benefit of these expenditures for nought. Had she relied upon her suit at law and recovered the land therein, it is probable respondents could only have recovered betterments, equal to rents, as provided by our statute: Code, secs. 3259-61. But, fearing the infirmity of her title at law, she has appealed to equity to aid her in recovering the land. Having sought and obtained equity, she must now do equity. The claim of respondents for betterments is not defeated by the fact that complainant had a registered title. Constructive notice by registration of adverse title does not destroy this equity: Malone on Real Property Trials, 140 (note). They used ordinary prudence and precaution in their purchases; and, having improved the land under color of title, they are entitled to receive something for all betterments placed on the land before they had actual knowledge of complainant's title: 2 Pomeroy's Eq. Jur., sec. 1241. But to what extent? Full value? Or only the value of rents and profits? And how is the allowance for them to be measured, declared and enforced? Howard v. Massengale. Previous to Fisher v. Edington, 12 Lea, 189, it had been the practice, and was by the bar generally thought to be the rule, to limit the allowance for betterments to the sum total of rents and profits. The reasons for this, and the danger to the title-holder from a different practice, are cogently expressed in the opinion of Judge Turney in that case. The equity of the occupants, however, was considered by a majority of the court to be so strong as to overcome these objections, and the full value of their betterments was decreed to them regardless of the limit of rents and profits. Here the case of the occupant defendants is equally meritorious. Lots ranging in value from forty to wo hundred dollars, when vacant, and of no appreciable rental value, have, by these improvements, been increased in value until they are now probably worth from four hundred to three thousand dollars, and perhaps more. All of these improvements have been made in the past five years, and without knowledge of complainant's title; some of the most valuable of them are yet incomplete, their progress having been arrested by this suit. The builders and occupants have as yet received little or nothing from their outlay. To limit their allowance for betterments, by the amount of rents and profits, is practically a total denial of the very equity of their claim, i. e., that complainant shall not take from them, without compensation, things of value, placed by them in good faith on her land, which now, because they are fixtures, necessarily inure to her benefit. As in Fisher v Edington, so here the court is of |