provements made by him were at his peril; to consider these services meritorious would be to encourage depredation on private property."

Besides, although the improvements might increase the value of the land, they might not be suitable for the purposes to which the owner wished to apply his land. Furthermore, however much the owner of the land might desire to improve it, the betterments being too expensive, he prefers to forego them. To force him to refund the amount spent in such meliorations, the common law would not permit.

"In regard to improvements made on the land while out of the possession of the rightful owner, the general principle of the English law, as well as our own is, that the owner recovers his land in ejectment without being subjected to the condition of paying for improvements, which may have been made upon it by any intruder, or occupant without title. The improvements are considered as annexed to the freehold, and pass with the recovery. Every possessor makes such improvements at his peril, and whether acting on an honest belief in his title or without color of right, the party who is ousted looses all benefits of his expenditures."

The action of ejectment was in the nature of trespass, quare clausum fregit, brought against the defendant, as a trespasser, so it was manifestly inconsistent with the technical form of the action. to permit the plaintiff to recover rents and profits for use and occupation, where he, at the same time, insisted that the holding of the defendant was unlawful, and it was not until more liberal and equitable pleadings were introduced into this action, that the set-off of the value of improvements was sanctioned,

In the much quoted case of Jackson vs. Loomis, this is very apparent, for the court, through Savage, C. J., places this indulgence to the defendant, on equitable grounds alone: "There is certainly no reason, in general, why the owner of land should be compelled to pay for improvements, which he neither directed. nor desired, as a condition on which he is to regain possession of his property. But when an occupant has taken possession under a bona fide purchase and made permanent improvements, it is very hard for him to lose both lands and improvements."

b Sedgwick on Damages, page 246.

e 4 Cow., 172.

In Putnam vs. Ritchie, Mr. Chancellor Walworth refuses to sanction such a set-off: "I have not, however, been able to find any case either in this country or in England, wherein the Court of Chancery has assumed jurisdiction to give relief to a complainant, who has made improvements upon land, the legal title to which was in the defendant, where there has been neither fraud nor acquiescence on the part of the latter, after he had knowledge of his legal rights. I do not, therefore, feel myself authorized to introduce a new principle into the law of this court, without the sanction of the legislature."

CIVIL LAW AND EQUITY.

The civil law appears to have conceived the doctrine of permitting a bona fide occupant to set off meliorations made by him on the land of another, but one, acting in bad faith, was not allowed this benefit. The common law rule operating in many instances harshly, relief was granted by courts of equity and State statutes, such as the "Betterment Acts" of New England. The action for mesne profits is an equitable one to which only equitable defenses could originally be made, and any other but equitable defenses, in this class of pleadings, are innovations.

In the case of Green vs. Biddle,' all ameliorations were deducted from the mesne profits, upon equitable principles, and this is now freely done in all courts practicing equity, or in actions established on an equitable basis."

Judge Story's opinions in Bright vs. Boyd" are of much consequence, both when the case was before him for the first time, and when he again heard it. "It appears to me, speaking with all deference to other opinions, that the denial of all compensation to such a bona fide purchaser, in such a case, where he has manifestly added to the permanent value of an estate by his meliorations and improvements, without the slightest suspicion of an infirmity in his own title, is contrary to the first principles of equity. To me it seems manifestly unjust and inequitable to appropriate to one man the property of another who is in no default.

I have ventured to suggest that the claim of the bona fide purchaser, under such circumstances, is founded in equity. I think it founded in the highest equity; and, in this view of the matter, I am supported by the Roman law."

d 6 Paige, 390.

e Sandar's Justinian (Hammond's Ed.), 175.

18 Wheat., 77.

g Story's Equity Jur., Sects. 799 and 1237.

h 1 Story, 495.

The action for mesne profits embraces so many elements of other actions, as trespass for damages, assumpsit for use and occupation, and a suit for an equitable accounting, it necessarily stands alone as a form of relief, not to be measured by rules which do not govern the component parts of the whole. Now it is treated as an equitable action, and to do equity between the parties, all equitable defenses can be availed of, and upon this idea equity adopted this doctrine, in order to alleviate the hardships of the common law policy, and further, to save two separate actions.'

In a very few States, by statute, a bona fide occupant may recover the entire value of his improvements, even though in excess of the mesne profits, and the excess is made a lien on the land, which must be satisfied before the plaintiff can be restored to his absolute rights as the owner of the premises There is a decision by Judge Story, in which he allows the entire value of the improvements. This decision is held by him to be in conformity with the doctrine of equity, independent of statute, and his words. are: "I wish, in coming to this conclusion, to be distinctly unperstood as affirming and maintaining this broad doctrine, as a doctrine of equity, that, so far as an innocent purchaser, for a valuable consideration, without notice of any infirmity in his title, has, by his improvements and meliorations added to the permanent value of the estate, he is entitled to full remuneration, and that such increase of value is a lien and charge on the estate, which the absolute owner is bound to discharge, before he is to be restored to his rights in the land.

This is the clear result of Roman law; it has the most persuasive equity, and, I may add, common sense and common justice for its foundation." The Supreme Courts of Tennessee and North Carolina soon followed this decision.*

Under a State statute, this has been declared to be the law in Connecticut, in the case of Griswold vs. Bragg,' and in that case Judge Shipman dissents from the decision of Judge Story just quoted. "This opinion of Judge Story, though often favorably quoted, cannot be considered as the established law of this coun. try, apart from the statute, because it has rarely had occasion to be reviewed, inasmuch as the "Betterment Acts" have become the predominant statutory system of this country."

i Johnson vs. Futch, 57 Miss., 80; Jackson vs. Loomis, 4 Cow.168.

j Bright vs. Boyd, 2 Story, 606.

k 4 Humph., 362; 4 Humph., 324; 74 N. C., 603; 84 N. C., 479.

18 Blatch C. C., 202.

The reasons of Judge Shipman's disapproval of Judge Story's treatment of the principles involved in that case, certainly appear sound, and it does not seem that jurists agree with Judge Story in permitting the entire value of improvements to be recovered where it exceeds the mesne profits.

Judge Story would be as severe to the plaintiff, who displayed laches only, as he could be to an owner acting with fraud, one who knows the bona fide occupant is erecting betterments, but, possibly, in the expectation of those meliorations passing with the land, in an ejectment suit, remains silent, looking on at the work being completed on his premises, without announcing his superior title. Should the law be equally generous to both these owners? The one who has displayed only laches, who is guilty of omission, and the other, who has acted fraudulently to the possessor, who being so indifferent to right and justice, or with corrupt intent, witheld information it was his duty to convey? To the proposition started with, that as against a claim for mesne profits, a bona fide occupant, under a claim of right, should be allowed to set off improvements, to the extent of the mesne profits, without recovering the excess of the value of improvements, over mesne profits, from the value of the land," there is one exception, and that is the case just alluded to, of an owner, who gives no notice to a bona fide occupant of his paramount title, even though he know the possessor of the land is placing betterments upon it. Here the occupant in good faith should be entitled to a lien on the land for the satisfaction of his claim for meliorations, and the excess of the value of improvements over the mesne profits should be paid from the sale of the land. But this is not by virtue of any right of the occupant to set off improvements in an ejectment suit, but upon the principle of estoppel. For he who conceals his title, or remains silent while another is building on his land, is ever afterward estopped from asserting his title, without indemnifying the innocent party for his expenditures. And if one having title to an estate, knowingly permit another to purchase the estate, without notice of the outstanding title, the former will be bound by the sale. for, "Qui tacet, consentire videtur; qui potest et debet vetare, jubet, si non vetat."

Mississippi is another State where the law, as pronounced by

m Ante, pages 1 and 2.

n Bright vs. Boyd, 1 Story 478-493.

Story's Equity Jur. Sects. 385, 387, 388, 799 and 1237.

Judge Story, prevails by statute.

The policy of equity is to act ex æquo et bono, and so to hold the occupant liable for mesne profits, but, of course, not for mesne profits never received by him, nor expended in betterments for the soil. Its primary object is to require the defendant to pay the plaintiff the rents and profits, which the land has earned, but in order not to be burdensome, nor oppressive on the defendant, he can mitigate these profits by any meliorations he has made on the land, upon the idea, as already stated, that he is not responsible for profits the benefits of which the land has received. So there is no lucid explanation or sound reasoning, after analyzing this question, in bestowing upon the defendant in an ejectment suit the privilege of extracting from the pockets of the plaintiff the entire value of betterments, or enforcing a lien on the land for its payment.

To give the defendant a lien on the land, for the satisfaction of the excess in the value of the improvements over the mesne profits, is little short of confiscation, and is a complete departure from the reasons which support the present pleadings in an ejectment suit. It is to be remembered that the technical law is, that everything passes with the realty. It was only by the intervention of equity, following in the footsteps of the civil law, that the defendant in ejectment, honest in his intentions, was allowed anything for his improvements, and to extend greater relief to the defendant than this, is a complete departure from equity and justice. The rule of the civil law was, that the bona fide possessor was entitled to be reimbursed from the mesne profits, by way of indemnity, for beneficial and permanent improvements, having due regard for the maxim, nemo debet locupletari ex alterius incommodo, and the law may now be correctly declared to be, in the absence of statutes, that the land is not liable for any excess in the value of improvements over mesne profits."

This is the rule laid down by Tyler on Ejectments." "The defendants should be allowed the value of improvements made in good faith, to the extent of the rents and profits claimed, and this is the view of the subject supported by authorities." New York is an advocate of this view of the subject. And in the case of Wood vs. Wood, Judge Folger uses the following language:

o Abbey vs. Merrick, 27 Miss., 320.

p Sedgwick & Wait on Trial of Title to Land. Sec. 698.

7 Sect. 849.

r Wood vs. Wood, 83 N. Y. 575, Bedell vs. Shaw, 59 N. Y. 46.

83 N. Y. 575.