hence several of the States have been led to provide remedies at law, for the protection of honest occupants, and for securing to them the fruits of their labor, fairly bestowed in the permanent improvement of the land.

charge, which, in conscience and equity, he and he only, and not the purchaser, ought to bear. To the extent of the charge, from which he has been thus relieved by the purchaser, it seems to me, that the plaintiff, claiming under the purchaser, is entitled to reimbursement, in order to avoid a circuity of action, to get back the money from the administrator, and thus subject the lands to a new sale, or, at least, in his favor, in equity to the old charge. I confess myself to be unwilling to resort to such a circuity, in order to do justice, where, upon the principles of equity, the merits of the case can be reached by affecting the lands directly with a charge, to which they are ex æquo et bono, in the hands of the present defendant, clearly liable.

"These considerations have been suggested, because they greatly weigh in my own mind, after repeated deliberations on the subject. They, however, will remain open for consideration upon the report of the master, and do not positively require to be decided until all the equities between the parties are brought by his report fully before the Court. At present, it is ordered to be referred to the master to take an account of the enhanced value of the premises, by the ameliorations and improvements of the plaintiff, and those, under whom he claims, after deducting all the rents and profits received by the plaintiff, and those, under whom he claims; and all other matters will be reserved for the consideration of the Court upon the coming in of his report." See 1 Story R. 494-499. Afterwards, upon the coming in of the report, by which the increased value of the land by reason of the plaintiff's improvements was ascertained at a certain sum, the learned Judge decreed, that the plaintiff was entitled to that sum, as a lien and charge on the land; concluding thus: "I wish, in coming to this conclusion, to be distinctly understood as affirming and maintaining the 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 a 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 original rights in the land. This is the clear result of the Roman law; and it has the most persuasive equity, and, I may add, common sense and common justice, for its foundation. The Betterment Acts (as they are commonly called) of the States of Massachusetts and Maine, and of some other States, are founded upon the like Equity, and were manifestly intended to support it, even in suits at law for the recovery of the estate." See 2 Story, R. 607, 608. See also Swan v. Swan, 8 Price, 518; 3 Powell on Mort. 957, note Q. by Coventry.

§ 550. There is great diversity also in the modes by which this object is effected. In some of the States, the value of the improvements is allowed only by way of set-off to the claim of the plaintiff for mesne profits. In others the occupant has a remedy by filing a declaration in a special action on the case, after judgment for possession has been entered against him in the action of ejectment; in which case the writ of possession is stayed until a trial is had of the action for the value of the improvements, and the judgment in the latter case constitutes a lien on the land. In other States, upon the trial of the possessory action, the Jury, at the request of the respective parties, are required to assess, on the one hand, the increased value of the premises by reason of the improvements made by the occupant and those under whom he claims; and on the other hand, the value of the land, exclusive of those improvements; and the plaintiff is put to his election, either to take the land and pay the ascertained value of the improvements, or to abandon the land to the tenant, at the price found by the Jury; and the payments in either case are made by instalments fixed by law, and enforced by issuing or withholding, the writ of possession.

§ 551. The character of the occupants, also, is the subject of some diversity of legislation. In general, the occupancy must have been in good faith, and without actual fraud. But in some States, the right to remuneration for improvements is given to all occupants, who have been in possession, claiming the exclusive title for a certain number of years; which of course includes disseisors, as well as those claiming under them; while in other States, it is restricted to persons claiming under patents, and public grants, and by deeds of conveyance; thus intending to exclude all who knowingly enter by wrong, and without color of title. In others, again, the improvements, made after notice of the paramount title, are expressly excluded from the consideration of the Jury.

$552. It is obvious, that in a work like the present, it would be inexpedient to treat of all these varieties of remedy,

or indeed to do any thing more than to state the very few general rules of the Common Law, which are recognized in the absence of any statutory provisions; referring the reader to the statutes and decisions of each particular State, for whatever is peculiar in its own jurisprudence.

§ 553. It is a general rule in all these actions, as we have already remarked in respect to Ejectments, that the plaintiff must recover on the strength of his own title, and not on the weakness of his adversary's; and that he must show, that he has the legal interest, and a possessory title, not barred by the statute of limitations.1 The same rules also apply here, which have been already mentioned under the title of Ejectment, in regard to the method of proving the plaintiff's title.2

§ 554. In a writ of right, proof of a seisin is necessary, as well as in other cases; but a title by disseisin is sufficient to maintain the action, if the tenant cannot show a better title; and the devisee of vacant and unoccupied land has, by operation of law, a sufficient seisin to maintain this action, without an actual entry. Proof of actual perception of profits is not necessary, the averment of the taking of esplees not being traversable; and the tenant's right of possession is no bar to the demandant's right of recovery in this action. The mise, when joined, puts in issue the whole title, including the statute of limitations; and under it, the tenant may

1 See supra, § 303. The writ of right being now limited to the same period with writs of entry, the proof of the right involves, of course, the proof of a possessory title.

2 See supra, § 305, 307–314, 316, 317, 318, 329.

3 Bradstreet v. Clark, 12 Wend. 602; Hunt v. Hunt, 3 Met. 175; Speed v. Buford, 3 Bibb, 57; Jackson on Real Actions, p. 280.

4 Ward v. Fuller, 15 Pick. 185; Green v. Chelsea, 24 Pick. 71. But if the land be not vacant and unoccupied, the devisee must prove his own seisin. Wells v. Prince, 4 Mass. 64.

5 Green v. Liter, 8 Cranch, 246; Ward v. Fuller, 15 Pick. 185.

6 Jackson on Real Actions, p. 282, 283.

give in evidence a release from the demandant, after action brought, or any other matter, either establishing his own title, or disproving that of the demandant, except a collateral warranty. But if a deed from the demandant to a stranger is shown, it may be rebutted, by evidence showing, that, at the time of its execution and delivery, the grantor was disseised, and that therefore nothing passed by the deed.2

§ 555. The seisin of the plaintiff or demandant, in any real action, is proved primâ facie, by evidence of his actual possession, which is always sufficient against a stranger. Such a possession, with claim of title, is sufficient to enable a grantor to convey; and the grantee, entering under such a conveyance, acquires a freehold,3 even though the grantor be a person non compos mentis; the deed in that case being voidable only, and not void. But no seisin is conveyed by a naked release. A seisin may also be proved by the extent of an execution on the land of a judgment debtor, which gives a seisin to the creditor.5 If the actual possession is mixed and concurrent, the legal seisin is in him who has the title; and a legal seisin also carries with it the possession, if there is no adverse possession. It is sufficient primâ facie, to prove a seisin at any time anterior to the period in question since it will be presumed to continue, until the contrary is shown.7

§ 556. The plea of nul disseisin, in a writ of entry, puts

1

1 Ten Eyck v. Waterbury, 7 Cowen, 51; Poor v. Robinson, 10 Mass. 131, 134.

2 Knox v. Kellock, 14 Mass. 200.

3 Newhall v. Wheeler, 7 Mass. 189, 199; Higbee v. Rice, 5 Mass. 345, 352; Ward v. Fuller, 15 Pick. 185.

4 Wait v. Maxwell, 5 Pick. 217; Kennebec Prop'rs v. Call, 1 Mass. 483. 5 Langdon v. Potter, 3 Mass. 215.

6 Codman v. Winslow, 10 Mass. 146; Kennebec Prop'rs v. Call, 1 Mass483, 484.

7 Kennebec Prop'rs v. Springer, 4 Mass. 416; Brimmer v. Long Whart Prop'rs, 5 Pick. 131, 135.

in issue the legal title to the land, or, in other words, the seisin on which the demandant has counted, and the lawfulness of the tenant's entry.1 If therefore, it is pleaded in bar of an action brought by a trustee, against the cestui que trust, it entitles the demandant to recover.2 Under this

issue, the tenant cannot avail himself of any objection to the form of the action; he cannot give non-tenure in evidence ; nor show, that he is but a tenant at will; 5 nor give in evidence the title of a stranger under which he does not claim, nor though he claims to hold as his servant; nor a title acquired by himself by conveyance from a third person since the commencement of the action.7 But under this issue, he may show a conveyance from the demandant or his ancestor to a stranger, for the purpose of disproving the demandant's allegation of seisin; and the demandant, as has already been remarked in the case of a writ of right, may rebut this evidence by proof, that, at the time of the conveyance, the grantor was not seised, and so nothing passed by the deed.9

8

$557. Where the tenant claims by a disseisin, ripened into a good title by lapse of time, he must show an actual, open, and exclusive possession and use of the land as his own, adversely to the title of the demandant. It must be known

1 Jackson on Real Actions, p. 5, 157 ; Green v. Kemp, 13 Mass. 515, 520; Wolcott v. Knight, 6 Mass. 418, 419.

2 Russell v. Lewis, 2 Pick. 508, 510.

3 Green v. Kemp, 13 Mass. 515, 520.

4 Higbee v. Rice, 5 Mass. 532, per Parsons, C. J.; Roberts v. Whiting, 16 Mass. 186; Alden v. Murdock, 13 Mass. 256, 259.

5 Ibid.; Pray v. Pierce, 7 Mass. 381.

6 Mechanics' Bank v. Williams, 17 Pick. 438; Stanley v. Perley, 5 Greenl. 369; Shapleigh v. Pilsbury, 1 Greenl. 271; Heath v. Knapp, 4 Barr. 230. 7 Andrews v. Hooper, 13 Mass. 472, 476.

8 King v. Barns, 13 Pick. 24, 28; Stanley v. Perley, 5 Greenl. 369; Hall v. Stevens, 9 Metc. 418; Noyes v. Dyer, 12 Shepl. 468; Cutler v. Lincoln, 3 Cush. 125.

9 Knox v. Kellock, 14 Mass. 200; Wolcott v. Knight, 6 Mass. 418; Supra, § 554.