CONCLUSION. The subject of improvements made by both a bona fide and mala fide occupant, on the land of the true owner, and the extent to which a possessor should be entitled to the value of such improvements, in an ejectment suit, have been traced from the origin in civil law, through the various transitions, to the Code and decisions of Georgia. In the course of examinations of the common law, the civil law, equity and miscellaneous adjudications relative to this question, arguments have been made and views. expressed with the object of showing the defects in the two sections, 2906 and 3468 of the Georgia Code, and suggestions have been advanced for the modification of those statutes, that they might not only conform to the spirit of equity, but also mete out justice to all parties litigant. In conclusion, therefore, all lengthy repetitions will be avoided, and merely a brief recapitulation entered into. It has been seen that the common law recognized no policy which severed betterments from the land, but that the owner of the free-hold became the absolute possessor of everything thereon, in the absence of express agreement; that the civil law relaxed the severity of the common law, and permitted a bona fide occupant to reduce a claim for mesne profits by the value of his meliorations; that equity adopted this wisely conceived principle of civil law, and even improved upon it by allowing all equitable defenses against a demand for the land and profits thereof, but did not offer a helping hand to one acting in bad faith by granting him relief, but on the contrary, refused to recognize this claim; that a bona fide possessor was neither in law nor equity permitted to recover the entire value of his betterments, (Judge Story's decision in Bright vs. Boyd," when that case was before him the second time, has not been accepted as the law of this country,) but he could only mitigate mesne profits by their value, that to this rule there is one exception, which prevails by reason of the law of equitable estoppel, not by virtue of the pleadings in an ejectment suit, and that is the case of an owner of the freehold with a full knowledge of his title, concealing that title, or silently witnessing the improvements of another, who he knows has an inferior title, in which case the true owner is estopped from asserting his own title to the detriment of the innocent party, and the latter can claim full compensation for his meliorations; that a few States by statutes have sanctioned the recovery h 2 Story, 606. of the full value of betterments, by a bona fide occupant, giving him a lien on the land for the excess of the value of improvements over profits; that still fewer States, by statutes, have allowed trespassers to mitigate damages and profits by their repairs; that a possessor cannot reduce profits by improvements, unless they have been permanent and increased the value of the premises, whether he be acting in good or bad faith. If the dictum in Dean vs. Feeley,' which is in opposition to the cases of Willingham vs. Long and Thomas vs. Malcolm,* be a correct construction of section 2906 of the Georgia Code, that a bona fide occupant can recover the entire value of improvements over and above the mesne profits, then that section should be so amended as to plainly confine a defendant to the mesne profits as the extent of his remuneration, for the reasons already given. Section 8468 of our Code is not only at war with both the civil law and equity, from which our modern ejectment suit has derived its existence, but it is also inharmonious with the very spirit of equity and justice it was intended to advance. What arguments can support the proposition that one who has behaved fraudulently, in the eyes of the law, who possibly has displayed moral depravity, in taking possession of that which, at the time, he knew was not his, or which he did not have cause to believe his, shall receive compensation on a plane with another who has been guilty of the same act, but under an honest conviction of ownership? True it can be said that the owner slept on his rights, and was negligent in not looking after his interests, but is this a satisfactory answer? Certainly not, for the owner has only displayed omission in his laches, while the trespasser has, at the best, acted with his eyes open, as to the defective title, and assumed the risk, as he would in any other speculation, of losing his whole investment. Besides there ought to be some distinction, as has been remarked, between the possessor bona fide and mala fide, the latter not being entitled to the consideration shown to one holding land under color of title with ignorance of any flaw in that title. As has been attempted to be shown,' in section 3468, the exception, "when the value of the premises has been increased by the repairs or improvements which have been made," does not affect that statute, as improvements to be set-off, in any event, i 69 Ga., 818. j 47 Ga., 540. Pages 20-21. must not only be permanent, but must increase the value of the premises. So much as to the sections 2906 and 3468 of the Georgia Code. There, however, remains even another method of adjustment as between the owner and occupier of the land in regard to the improvements, as is suggested in several decisions of our Supreme Court," that the land and improvements should be sold together, and whatever sum thereby realized, over and above the value of the land, exclusive of improvements, at the time of the sale, should be paid to the occupant who has erected these improvements in good faith. A close examination will doubtless prove to any one devoting thought to the subject, that this disposition must be good and equitable in some instances, as where one has purchased and improved the land in ignorance of a prior lien or mortgage, and may be better, in the majority of cases, than if the bona fide occupant were allowed to reduce the claim for mesne profits, not encroaching on the value of the land, but be that as it may, certain it is that our statutes should be altered to meet the one or the other of the two methods, and no longer remain in their present form, without sound law or reason to sustain them. The members of the Georgia bar generally feel a pressing need for an elucidation of, if not a complete change in, the law governing improvements in ejectment suits. Should this paper succeed in pointing out the defects in the present law, and in presenting suggestions of practical importance to the profession, it will have attained its purpose. m McPhee vs. Guthrie, 51 Ga., 83; Dean vs. Feeley, 69 Ga., 804. APPENDIX No. 14. REPORT OF COMMITTEE ON LEGAL EDUCATION AND ADMISSION TO THE BAR. To the Georgia Bar Association: The Committee on Legal Education and Admission to the Bar deem it necessary to submit a further report in the absence of definite action in relation to their report made in August last. They have cast said report into the form of a Bill, to be submitted, with the approval of the Association, to the next Legislature of Georgia for action, and they respectfully offer said report, with the Bill annexed, as the report of the Committee for the present GEORGE A. MERCER, year. P. W. MELDRIM, A. T. MACINTYRE, JR., C. C. KIBBEE, S. G. McLENDON, Committee. REPORT OF THE COMMITTEE ON LEGAL EDUCATION AND ADMISSION TO THE BAR. SUBMITTED AUGUST 3, 1888. At the second annual meeting of the American Bar Association, held at Saratoga on the 20th and 21st days of August, 1879, the Committee on Legal Education and Admission to the Bar of that body, submitted an elaborate report, in which they discussed at length the necessity to the legal fraternity of an ample and liberal course of preliminary study, general as well as professional; and they concluded their report with the following resolutions, the adoption of which they recommended: That the several State and other local Bar Associations be respectfully requested to recommend and further in their respective States, the maintenance by public authority of schools of law provided with faculties of at least four well paid and efficient teachers, whose diploma should, upon being unanimously granted, after a full and fair written examination, be essential as a qualifi. cation for practicing law. That the said State and other local Bar Associations be respectfully requested to recommend and further in such law schools a general course of instruction, to be duly divided, for ordinary purposes, into studies and exercises of the first year, of the second year, and of the third year, including at least the following studies: I. Moral and Political Philosophy. II. The Elementary and Constitutional Principles of the Municipal Law of England; and herein 1st. Of the Feudal Law. 2d. The Institutes of the Municipal Law generally. 3d. The Origin and Progress of the Common Law. III. The Law of Real Rights and Real Remedies. IV. The Law of Personal Rights and Personal Remedies. VI. The Lex Mercatoria. VII. The Law of Crimes and their Punishments. VIII. The Law of Nations. IX. The Admiralty and Maritime Law. X. The Civil or Roman Law. XI. The Constitution and Laws of the United States of America, and herein of the jurisdiction and practice of the Courts of the United States. XII. Comparative Jurisprudence and the Constitution and Laws of the several States of the Union. XII. Political Economy. That the said State and other local Bar Associations be respectfully requested to recommend and further in such law schools the requirement of attendance on at least the studies and exercises appointed for said course of three years, as a qualification for examination to be admitted to the bar. Upon this report the American Bar Association took no action; and your committee are not advised that any State Bar Association has recommended or furthered its suggestions. We do not |