Brown v. Storm

Williams J., delivered the opinion of the court'. — Mr. Storm having recovered in an action of ejectment against Brown, the latter has filed this declaration for betterments under the statute. The declaration consists of four counts ; the plea professes to answer the whole declaration, and is demurred to. It would have been more advisable to have traversed the declaration, as the statute provides that if judgement is rendered for the defendant on-demurrer, the plaintiff may file a new declaration within twenty-four hours. All the questions which have been made would'have Been raised on the trial'of an issue to the jury. But as every question upon which the parties would request the opinion of the Court have probably beem made in this case, we are disposed to. decide it on the construction which must be given to the statute-rather than on-any critical view offthe pleadings. The statute was made for the purpose of giving relief in those eases where a person has honestly and innocently entered into the possession of land supposing his title was good, but which proves, [43] to have been defective. The action for betterments, as they termed in the statute, given on the supposition that the legal title is found to be iu the plaintiff in ejectment, and is intended to secure to the defendant the fruit of his labour, and to the plaintiff all that he is justly entitled to, which is his land in as good a situation as it would have been if no labour had been bestowed thereon. The statute is highly equitable in all its provisions, and would do exact justice if the value either of the improvements or land was always correctly estimated. The principles on which it is founded are taken from the civil law where ample provision was made for reimbursing to the bona-fide possessor the expense of his improvements, if he was removed from his possession by the legal owner. It gives to the possessor, not the expense which he has laid out on the land, but the amount which he has increased the value of the land by his betterments thereon ; or, in other words, the difference between the value of the land, as it is when the owner recovers it, and the value, if no improvement had been made. If the owner take the land together with the improvements at the advanced' value which it has from the labour of the possessor, what can be more just than that he should pay the difference. Rut ifhe is unwilling to pay this difference, by giving'a deed as the statute provides, he receives the value as it would have been if nothing had been done thereon. The only objection which can be made is, that it is sometimes compelling the owner to sell when he may have been content with the property in its natural state. But this when weighed against the loss to the bona fide possessor, and against the injustice of depriving him of the fruits of his labour, and giving it to another,who by his negligence, in not sooner enforcing his claim, has in some measure contributed to the mistake under which be haslaboured, is not entitled to very great consideration. The statute gives the fight -to those defendants in the actual possession and improvement ofland, who had purchased, supposing at the time of such purchase, the title to be good in fee. Without the fifth section of the statute, no person, entering into land under a contract with the owner, could recover for his improvements, for no such person could suppose they purchased a title in fee, when the purchase was to depend on fulfilling the contract made with the owner. To this effect were the decisions in the ^th and 12th Massachusetts Reports, referred to in the argument.* The fifth section,however,expressly provides,that such person shall [44] recover for his betterments unless, in case of a mutual contract, the failure to fulfil was on the part of the owner. And in that case ^ gUes to the person in possession under such contract the same right to recover for his improvements as if he had entered under a supposed title in fee. The possession of a person under a contract, or as tenant, may become adverse to the person with whom he contracted, or to the landlord, by an express disclaimer. And when he makes sucb disclaimer, and denies to hold under his contract, or as tenant, and gives notice thereof to the owner, he then becomes a trespasser, and his possession is considered thereafter adverse. — Blight’s lessee vs. Rochester, 7 Wheat. Rep. 535 ; Willison vs. Watkins, 3 Peters’s Rep. 43. And although such person would be excluded from the benefit of the betterment act,by the express words of the fifth section, yet his grantee would be entitled to the full benefit of it, to recover for any improvements which he migh mate, especially if the relation between the owner and first possessor did not appear on record. For if it is true that such possession, continued for a sufficient length of time, would protect the person in possession, and give him a title by the statute of limitations, as is considered in the cases above referred to, a fortiori, it ought to entitle him,'if he entered under a deed which he had reason to suppose conveyed a title in fee, to the value of his improvements. From the statute which we have been considering the following principles are derived as applicable to the case under consideration : That in order to entitle a person to his betterments he must have entered into possession supposing that he had purchased a title in fee — That no person who enters into possession under a contract with the owner comes within the first section of the statute,and is expressly excluded from the benefit of the same by the fifth section, and, therefore, cannot recover any thing for his betterments unless the owner fails to fulfil the contract on his part— That when a person does enter into possession under a supposed title he is not prevented from recovering pay for the betterments or improvements which he makes, because the person from whom he purchased had made a contract with the owner, unless he had knowledge of such contract, and purchased the right which his grantor had by virtue thereof. This will preclude a recovery in all cases where a person purchases of a mortgagee or lessee, when the relation appears of record, and, in general, m all cases where possession is taken under another by a recognition of his title, as no such person can suppose he purchased a title in fee — That in [45] a declaration for betterments the title of the plaintiff in ejectment cannot again be brought in question, as that is determined in that action. And from these principles it results, that Brown may recover for all the betterments made by himself; — that he may also recover for the betterments made by Dewey, who deeded to him, if Dewey, at the time he purchased of Harvill, supposed he purchased a title in fee : but if Dewey only purchased of Harvill his right under the contract which Harvill made with Storm, Brown cannot recover for those improvements ; — and that Brown cannot recover for any improvements made by Harvill, as he entered under a contract with Storm, and there was no failure on the part of Storm to fulfil. The declaration contains counts against which there is no objection, which will entitle the plaintiff to a judgement; but in assessing the damages, none can be assessed on those counts which are founded on the alleged want of title in Storm. The second plea was probably designed to being in question the constitutionality of the betterment act; but this question was not argued. It is true, all these acts are retrospective ; but I know of no objection against retrospective acts under the constitution of this state, or the United States. The obligation of the contract with Storm is not impaired, as the plaintiff can still enforce it against Harvill, if he can give the title which he contracted to give. The judgement of the court is, that The plea is insufficient, and that the plaintiff recover his damages. Footnotes [*] 6 Mass. Rep. 307, 331; 12 do. 329,