REAL ACTIONS.

§ 547. THE principal rules of evidence, applicable to actions for the recovery of lands and tenements, have already been considered, under the title of Ejectment; this being the form of remedy pursued in most of the United States. But in several of the States, this remedy has been essentially modified; as in South Carolina, where its fictions are abolished, and an action of "trespass to try titles" is given by statute; and in Alabama, where a similar action, or a writ of ejectment, is given, at the election of the party. In other States, namely, in Georgia, Iowa, Texas, California, and Louisiana, the remedy in this, as in all other civil cases, is by petition or complaint, in which the entire case of the plaintiff is fully and distinctly stated, and is answered by the defendant, much in the manner of proceedings in Equity. In others, as in Maine, New Hampshire, Connecticut, and Illinois, the forms of action known to the Common Law, are all recognized, but the remedies in most frequent use are the writ of right, the writ of dower unde nihil habet, the writ of formedon, in the very few cases of entailments which now occur, and especially a writ, properly termed a writ of entry upon disseisin. This last is now almost the only remedy resorted to, except for dower, since the limitation of all real actions and rights of entry, in all the States last mentioned, except Connecticut, as well as in most others, is now reduced to one uniform period of twenty years. In Connecticut the limitation is fifteen years, and in one or two other States the period is still shorter.1

§ 548. There is diversity in the laws of the several States

1 See 3 Cruise's Dig. sub fine, for a synopsis of the statutes of Limitation of Real Actions in the several States.

on another point, namely, the remedy for mesne profits. In some States, this remedy is by an action of trespass, as at Common Law. In others, as in Massachusetts, Maine, and Illinois, and, to a limited extent, in Vermont, the damages for mesne profits, are assessed by the Jury, in the trial of the writ of entry, the real action being thus changed by statute into a mixed action. In Pennsylvania, North Carolina, South Carolina, Tennessee, Alabama, Wisconsin, and Missouri, they are assessed, with various restrictions, by the Jury in the trial of the writ of ejectment. In Ohio and Alabama, where the value of his lasting improvements is claimed by the defendant, and the value of the land, exclusive of the improvements, is also assessed at the request of the plaintiff, the claim for mesne profits is merged and barred, by statute, in these proceedings.

§ 549. The proceedings last mentioned relate to another feature, peculiar in the law of real remedies of some of the United States, but unknown in others; namely the right of the occupant of land to recover against the true owner, on eviction by him, the value of the lasting improvements, popularly termed betterments, which in good faith he has made upon the land. This right, to a certain extent, is a familiar doctrine in Courts of Equity, and it is freely administered whenever the owner, after recovery of the land, resorts to a bill in Equity against the late occupant, for an account of the rent and profits; but whether those Courts would sustain a bill, originally brought by the occupant for the value of his improvements, was, until of late, wholly an open question, but is now, in one class of cases, settled in favor of the remedy. At Common Law, it is well known

1 See 2 Kent, Comm. p. 334-338; Bright v. Boyd, 1 Story, R. 478. In this case, which was a bill in Equity, the plaintiff had purchased the premises in question at a sale, made by the administrator of the defendant's ancestor for payment of his debts; but the title being defective, by reason of illegality in the administrator's proceedings, the defendant, who was the devisee under a foreign will, had recovered the land from the present plaintiff, in an action at law. The present plaintiff, not having had possession of

that no such claim could be maintained; but the situation of the United States, as a new country in the course of

the land for a sufficient length of time to enable him to claim the value of his lasting improvements under the statute of Maine, in the action at law, now filed this bill for that and some other purposes, in the Circuit Court of the United States. The principal question was discussed by Mr. Justice Story in the following terms:- "The other question, as to the right of the purchaser, bonâ fide and for a valuable consideration, to compensation for permanent improvements made upon the estate, which have greatly enhanced its value, under a title, which turns out defective, he having no notice of the defect, is one, upon which, looking to the authorities, I should be inclined to pause. Upon the general principles of Courts of Equity, actting ex æquo et bono, I own, that there does not seem to me any just ground to doubt, that compensation, under such circumstances, ought to be allowed to the full amount of the enhanced value, upon the maxim of the Common Law, Nemo debet locupletari ex alterius incommodo; or, as it is still more exactly expressed in the Digest, Jure naturæ æquum est, neminem cum alterius detrimento et injuria fieri locupletiorem.1 I am aware, that the doctrine has not as yet been carried to such an extent in our Courts of Equity. In cases where the true owner of an estate, after a recovery thereof at law, from a bona fide possessor for a valuable consideration without notice, seeks an account in Equity, as plaintiff, against such possessor, for the rents and profits, it is the constant habit of Courts of Equity to allow such possessor (as defendant) to deduct therefrom the full amount of all the meliorations and improvements, which he has beneficially made upon the estate; and thus to recoup them from the rents and profits.2 So, if the true owner of an estate holds only an equitable title thereto, and seeks the aid of a Court of Equity to enforce that title, the Court will administer that aid only upon the terms of making compensation to such bonâ fide possessor for the amount of his meliorations and improvements of the estate, beneficial to the true owner.3 In each of these cases, the Court acts upon an old and established maxim in its jurisprudence, that he who seeks equity must do equity. But it has been supposed, that Courts of Equity do not and ought not to go further, and to grant active relief in favor of such a bonâ fide possessor, making permanent meliorations and improvements, by sustaining a bill, brought by him therefor, against the true owner, after he has recovered the premises at law. Ifind, that Mr. Chancellor Walworth, in Putnam v. Ritchie, 6 Paige, 390, 403, 404, 405, entertained this opinion, admitting at the same time, that he could find no case in England or America, where the point had been expressed or decided either way. Now, 1 Dig. lib. 50, tit. 17, 1. 206.

2 2 Story on Eq. Jurisp. § 799 a., § 799 b., § 1237, 1238, 1239; Green v. Biddle, 8 Wheat. 77, 78, 79, 80, 81.

8 See also 2 Story, Eq. Jurisp. § 799, b., and note; Id. § 1237, 1238.

4 Ibid.

rapid and even tumultuous occupation, having given rise to great uncertainties in the titles to land, the rule of the

if there be no authority against the doctrine, I confess, that I should be most reluctant to be the first Judge to lead to such a decision. It appears to me, speaking with all deference to other opinions, that the denial of all compensation to such a bonâ 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 any infirmity in his own title, is contrary to the first principles of equity. Take the case of a vacant lot in a city, where a bonâ fide purchaser builds a house thereon, enhancing the value of the estate to ten times the original value of the land, under a title apparently perfect and complete; is it reasonable or just, that in such a case, the true owner should recover and possess the whole, without any compensation whatever to the bonâ fide purchaser? To me it seems manifestly unjust and inequitable, thus to appropriate to one man the property and money of another, who is in no default. The argument, I am aware, is, that the moment the house is built, it belongs to the owner of the land by mere operation of law; and that he may certainly possess and enjoy his own. But this is merely stating the technical rule of law, by which the true owner seeks to hold, what in a just sense he never had the slightest title to, that is, the house. It is not answering the objection; but merely and dryly stating, that the law so holds. But, then, admitting this to be so, does it not furnish a strong ground why equity should interpose, and grant relief?

"I have ventured to suggest, that the claim of the bonâ 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 positive dictates of the Roman Law. The passage already cited shows it to be founded in the clearest natural equity: Jure naturæ æquum est. And the Roman Law treats the claim of the true owner, without making any compensation under such circumstances, as a case of fraud or ill faith. Certe (say the Institutes) illud constat; si in possessione constituto ædificatore, soli Dominus petat domum suam esse, me solvat pretium materiæ et mercedes fabrorum; posse eum per exceptionem doli mali repelli; utique si bonæ fidei possessor, qui ædificavit. Nam scienti, alienum solum esse, potest odjici culpa, quod ædificaverit temere in eo solo, quod intelligebat alienum esse. It is a grave mistake, sometimes made, that the Roman Law merely confined its equity or remedial justice, on this subject, to a mere reduction from the amount of the rents and profits of the land. The general doctrine is fully expounded and supported in the Digest, where it is applied, not to all expenditures upon the estate, but to such expenditures only as have enhanced 1 Just. Inst. lib. 2, tit. 1, § 30, 32; 2 Story on Eq. Jurisp. § 799 b; Vinn. Com. ad. Inst. lib. 2, tit. 1, Just. § 30, n. 3, 4, p. 194, 195.

2 See Green v. Biddle, 8 Wheat. 79, 80.

Common Law was found to operate inequitably in very many cases, and sometimes to work gross injustice; and

the value of the estate, (quatenus pretiosior res facta est,)1 and beyond what he has been reimbursed by the rents and profits.2 The like principle has been adopted into the law of the modern nations, which have derived their jurisprudence from the Roman Law; and it is especially recognized in France, and enforced by Pothier, with his accustomed strong sense of equity, and general justice, and urgent reasoning.3 Indeed, some jurists, and among them, Cujacius, insist, contrary to the Roman Law, that even a malâ fide possessor ought to have an allowance of all expenses, which have enhanced the value of the estate, so far as the increased value exists.4

The law of Scotland has allowed the like recompense to bonâ fide possessors, making valuable and permanent improvements; and some of the jurists of that country have extended the benefit to malâ fide possessors to a limited extent.5 The law of Spain affords the like protection and recompense to bonâ fide possessors, as founded in natural justice and equity.6 Grotius, Pufendorf, and Rutherford, all affirm the same doctrine, as founded in the truest principles, ex æquo et bono.7

"There is still another broad principle of the Roman Law, which is applicable to the present case. It is, that where a bonâ fide possessor or purchaser of real estate pays money to discharge any existing incumbrance or charge upon the estate, having no notice of any infirmity in his title, he is entitled to be repaid the amount of such payment by the true owner, seeking to recover the estate from him.8 Now, in the present case, it cannot be overlooked, that the lands of the testator, now in controversy, were sold for the payment of his just debts, under the authority of law, although the authority was not regularly executed by the administrator in his mode of sale, by a non-compliance with one of the prerequisites. It was not, therefore, in a just sense, a tortious sale; and the proceeds thereof, paid by the purchaser, have gone to discharge the debts of the testator, and so far the lands in the hands of the defendant (Boyd) have been relieved from a charge, to which they were liable by law. So that he is now enjoying his lands, free from a

1 Dig. lib. 20, tit. 1, 1. 29, § 2; Dig. lib. 6, tit. 1, 1. 65; Id. l. 38; Pothier, Pand. lib. 6, tit. 1, n. 43, 44, 45, 46, 48.

2 Dig. lib. 6, tit. 1, 1. 48.

8 Pothier, De la Propriété, n. 343-353; Code Civil of France, art. 552, 555.

4 Pothier, De la Propriété, n. 350; Vinn. ad. Inst. lib. 2, tit. 1, 1. 30, n. 4, p. 195.

5 Bell. Comm. on Law of Scotland, p. 139, § 538; Ersk. Inst. b. 3, tit. 1, § 11; 1 Stair, Inst. b. 1, tit. 8, § 6.

61 Mor. & Carl. Partid. b. 3, tit. 28, 1. 41, p. 357, 358; Asa & Manuel, Inst. of Laws of Spain, 102.

7 Grotius, b. 2, ch. 10, § 1, 2, 3; Pufend. Law of Nat. & Nat. b. 4, ch. 7, § 61; Rutherf. Inst. b. 1, ch. 9, § 4, p. 7.

8 Dig. lib. 6, tit. 1, 1. 65; Pothier, Pand. lib. 6, tit. 1, n. 43; Pothier, De La Propriété, n. 343.