Dothage v. Stuart

Dryden, Judge, delivered the opinion of the court. The respondent being in possession of a part of section 11, in township 45, N. R. 3 W., in Warren county, the plaintiff in error holding the better title, sued in ejectment and recovered judgment for possession. The respondent thereupon instituted the present suit to recover compensation for his improvements. The petition was demurred to ; the demurrer was overruled, and judgment for the respondent ; and the defendant below has brought- the case here by writ of error. It is provided by the 20th section of the ejectment law (R. C.-1855, p. 694), that “If a judgment or decree of dispossession shall be given in an action for the recovery of possession of premises, or in any real action, in favor of á person having a better title thereto, against a person in the possession (held by himself or his tenant) of any lands, [254] tenements or hereditaments, such person may recover, in a court of competent jurisdiction, compensation for all improvements made by him in good faith on such lands, tenements or hereditaments, prior to his having had notice of such adverse title.” The 21st section provides that “ the plaintiff in his petition shall set forth the nature of his title, the length of his possession, and the kind and value of the improvements made ; and shall also aver therein, that he entered into the possession of the land believing that he had good title thereto, and that he made the improvements specified in the petition in good faith, under the belief that he hacf good title to the land, and shall be verified by his affidavit thereto annexed.” It appears from the petition that the respondent claimed the land on which the improvements were made under a purchase in 1840, at a sale thereof under the laws of the State, as school lands, followed by a patent from the State authorities ; and that the plaintiff in error, defendant below, acquired the better title by entry in 1855, at the proper land office, followed by a patent from the United States. The petition also set forth the length of the respondent’s possession, the kind and value of his improvements, recovery against him in the ejectment suit, and averred that the respondent entered into the possession of the land believing he had a good title thereto, and had made the improvements in good faith under the belief that he had good title. Three objections to the petition are urged in this court by the plaintiff in error. 1. That it does not appear from the petition that the land alleged to have been sold to the respondent, was located in the 16th section, or was land selected in lieu thereof; in other words, that the petition does not show that the respondent had a valid title to the land. This objection appears to be founded in a total misconception of the reason and intention of the statute under which the action is brought. By the common law the owner recovers his land in ejectment, without being subjected to the condition of paying for improvements which may have been [255] made upon it by any intruder or occupant without title. This rule of the common law, however, has become so far relaxed as to allow a defendant in the action for mesne profits, and also a defendant in the action of ejectment where in that action the rents and profits are recoverable, to set off the value of permanent improvements on the land made by him in good faith during his occupancy to the extent of the rents and profits claimed. (Sedgwick on Dam. 126.) But in all cases where the value of the improvements exceeded the rents and profits, the law as thus relaxed failed to furnish a full measure of justice. To cure this defect, the statutory provisions quoted were adopted. The remedy afforded by the statute is given, not to one having title (for he is in no need of the remedy), but it is given to him who, though without title to the land, has made improvements in good faith, believing he had title. It would be absurd, then, to hold, that a petition seeking relief under the statute was defective because it failed to show the plaintiff had a valid title to the land of which he had been evicted. The second objection urged is to the effect that the respondent’s remedy is not against the plaintiff in error, but against the County of Warren, is without any force. The third objection is substantially the same as the first, and has been already considered. We find no error in the record. Let the judgment be affirmed. The other judges concur.