Society for the Propagation of the Gospel v. Wheeler

STORY, Circuit Justice. This is a writ of entry sur disseisin, brought on the demand-ants’ own seisin, and a disseisin by the tenants within thirty years; the writ bears teste on the 22d December, 1807. The tenants, at May term, 1808, having pleaded a plea to the jurisdiction, which was overruled by the court, afterwards pleaded the general issue nul disseisin; and at the present October term of this court, a verdict was found for the de-mandants; and also the value of the improvements made by the tenants on the demanded premises, pursuant to the statute of New Hampshire of the 19th of June, 1805. Acts 1805, p. 395; Acts 1815, p. 170. After the verdict, a motion was made by the demand-ants for a judgment on the verdict, at common law, and writ of seisin thereon, without any regard whatever to the provisions of the statute of 1805, or the value of the improvements found by the verdict, principally upon the ground that this statute was unconstitutional. A cross motion was also made by the tenants in arrest of judgment, upon the ground that the demandants were, by their own showing, alien enemies, and therefore not entitled further to pursue the present action. These motions have been ably argüed, and the decision, which after much deliberation I have formed, will now be pronounced. And first, as to the motion in arrest df judgment. The demandants are described in the writ, as “The Society for the Propagation of the Gospel in Foreign Parts, a corporation duly constituted and established in England, in the dominions of the king of the United Kingdoms of Great Britain and Ireland, the members of which society are aliens and subjects of the said king.” If from this description, and the other facts apparent upon the record, the court must intend, that the de-mandants have not a capacity further to pursue the present action, then the motion must prevail. If, on the other hand, by possibility, and consistently with the facts on the record, such capacity can remain, then judgment must pass upon the verdict for the demandants. There is no pretence for holding, that the mere alien-age of the demandants would form a valid bar to the recovery in this case, supposing the two countries to be at peace; for however true it may be. in general, that an alien cannot maintain a real action, it is very clear that either upon the ground of the 9th article of the British treats of 1794, or upon the more general ground, that the division of an empire works no forfeiture of rights previously acquired, (and in point of fact the title of the demandants was acquired before the American Revolution) for aught that appears upon the present record, the present action might well be maintained. Kelly v. Harrison, 2 Johns. Cas. 29; Jackson v. Bunn, 3 Johns. Cas. 109. The whole objection therefore must rest on the existing war. The defence of alien enemy is by no means favored in the law (see Steph. Pl., Ed. 1824, p. 67); and some modern cases have gone a great way in discountenancing it; further, indeed, than seems consistent with the general rules of pleading. In Casseres v. Bell, 8 Term R. 166, the court held, that the plea of alien enemy must not only aver such hostile character, but also set forth every fact that negatives the plaintiff’s right to sue; and this decision is expressly put upon the mere ground of authority. On a careful examination, however, of the cases cited, it will not be found that they support the doctrine. In Derrier v. Arnaud, 4 Mod. 405, the original record of which, Lord Kenyon says, had been examined, the plea negatived every presumption that could arise in favor of the plaintiff's right to sue. But the case did not turn at all upon that point, but simply on the question, whether oriundus. in the plea, was equivalent to natus. and upon examining precedents, the court held the plea good; and, as no such objection was made, it seems difficult to admit, that a mere averment of the additional facts was adjudged necessary, when upon the judgment of the court it stands purely indifferent. In Openheimer v. Levy, 2 Strange, 1082, to an action of assumpsit the.defendant pleaded, alien nee, without saying alien ene — 764 — my, and the, court held, that, as an alien friend may maintain a personal action, and in order to abate the writ, the .plaintiff should be shown to be an alien enemy, which is not to be presumed, nor the contrary necessary to be replied, therefore the plea -was bad; and so the law had before that time been held. Dyer, 2. The case, therefore, steers wide of the doctrine contended for. In Wells v. Williams, 1 Ld. Raym. 282, Lutw. 34, and Salk. 40; to debt upon a bond by an executor, the defendant pleaded, that the plaintiff was an alien enemy, and came into England without a safe conduct. The plaintiff replied, that at the time of making the bond he was, and yet is, in England, by the license, and under the protection of the king; and upon demurrer the court held, not that the plea was bad, but that the replication was good; and the court resolved, that if the defendant came there before the war, there was no need of a safe conduct; and if he came since the war, and continued without molestation, it should be intended that he came by a license, and his right to sue was consequent upon his protection. In this case, also, the objection did not arise; for the only question seemed to be, whether a residence by the license, and under the protection of the king, would entitle the party to sue without having a safe conduct; and the court held that it would. And this is but an affirmance of the doctrine of the year books. 32 Hen. VI. p. 23b. These are all the authorities, upon which Casseres v. Bell professes to have been decided. On the other hand, in Sylvester's Case, 7 Mod. 150, which was not cited, where the plea was alien enemy, or demurrer, the court held it good; and that, if the party were entitled under a general or special protection of the king, he ought to reply that fact. And so were the pleadings in George v. Powell, Fortes. 221. And there are several other precedents, in which the plea does not negative the facts, which might enable an alien enemy to sue. 9 Edw. IV. p. 7; Cro. Eliz. 142. If, therefore, the present question turned at all upon Casseres v. Bell, which was cited at the argument, it would require a good deal of consideration, before that decision could be maintained. The case of Clarke v. Morey, 10 Johns. 69, pushes the doctrine further, and asserts that an alien enemy, who comes and resides here without a safe conduct or license from the government, (for so is the averment in the plea) is at all events entitled to sue, until ordered away by the president; and this too, although the party is not known by the government to have his residence here. The English authorities have always required an express safe conduct or an implied license; and Boulton v. Dobree, 2 Camp. 163, decides, that a license is not to be implied from mere residence, unless sanctioned by the government after the commencement of hostilities. The present case, however, may well rest upon distinct grounds; for whether the facts should, in pleading, come from one party or the other, to bring the plaintiff within, or to take the plaintiff out of, the disability of alien enemy: it is very clear, that every fact must appear on the record, which negatives his right to sue; otherwise the judgment cannot be arrested. The objections to the rendition of judgment for the demandants, in the case at bar, seem to be two; first, that the corporation itself, being established in the enemy’s country, acquires the enemy’s character from its domicil: second, that the members of the corporation are subjects of the enemy, and therefore personally affected with the disability of hostile alienage. It is certainly true, that as to individuals, their right to sue in the courts of a belligerent, or to hold or enforce civil rights, depends not on their birth and native allegiance, but on the character, which they hold at the time when these rights are sought to be enforced. A neutral, or a citizen of the United States, who is domiciled in the enemy’s country, not only in respect to his property, but also as to his capacity to sue, is deemed as much an aRen enemy, as a person actually born under the allegiance and residing within the dominions of the hostile nation. This, indeed, has long been settled as the general law of nations, and enforced in the tribunals of prize; and has been latterly recognised and confirmed in the municipal courts of other nations. O’Mealey v. Wilson, 1 Camp. 482; McConnell v. Hector, 3 Bos. & P. 113. And the same principle has been applied to a house of trade established in a hostile country, although the parties might happen to have a neutral domicil; the property of the house being, for such purpose, considered as affected with the hostile character of the country, in which it is employed. The Vigilantia, and the cases therein cited, 1 C. Bob. Adm. 1; The San Jose Indiano [Case No. 12,3221. In this respect, a corporation, authorized by its charter to carry on a trade, and established in the hostile country, such as the East India Company, would undoubtedly be held, as to its property, within the same rule, even admitting its members possessed a neutral domicil. In general, an aggregate corporation is not in law deemed to have any commorancy, although the cor-porators have (Inhabitants of Lincoln Co. v. Prince, 2 Mass. 544); yet there are exceptions to this principle; and where a corporation is established in a foreign country, by a foreign government, it is undoubtedly an alien corporation, be its members who they may; and if the country become hostile, it may, for some purposes at least, be clothed with the same character. Even in respect to mere municipal rights and duties, an aggregate corporation has been deemed to have a local residence. It has been held to be an “inhabitant" under the statute for the reparation of bridges (22 Hen. VIII. c. 5; 2 Inst. 697, 703); and an “inhabitant and — 765 — occupier” liable to pay poor rates, under the statute, 43 Eliz. c. 2. Rex v. Gardner, Cowp. 83. It may therefore acquire rights, and be subject to disabilities, arising from the country, if I may so express myself, of its domicil. And, indeed, upon principle or authority, it seems to me difficult to maintain, that an aggregate corporation, as for instance an insurance company, a bank, or a privateering company, established in the enemy’s country, could, merely from its being an invisible, intangible thing, a mere incorporeal and legal entirety, be entitled to maintain actions, to enforce rights, acquire property or redress wrongs, when its own property on the ocean would be good prize of war. If the reason of the rule of the disability of an alien enemy be, as is sometimes supposed, that the party may not recover effects, which, by being carried hence, may enrich his country, that reason applies as well to the case of a corporation, as of an individual, in the hostile country. If the reason be, as Lord Chief Justice Eyre in Sparenburgh v. Bannatyne, 1 Bos. & P. 163, asserts it to be. that a man professing himself hostile to our country, and in a state of war with it, cannot be heard, if he sue for the benefit and protection of our laws, in the courts of our country, that reason is not less significant in the case of a foreign corporation, than of a foreign individual, taking advantage of the protection, resources and benefits, of the enemy’s country. In point of law, they stand upon the same footing. It has been argued, that the court will look to the purposes, for which the corporation was instituted, and to the conduct, which it observes; if these be innocent or meritorious, they afford an exception from the general rule. But it is not the private character or conduct of an individual, which' gives him the hostile or neutral character. It is the character of the nation, to which be belongs and where he resides. He may be retired from all business, devoted to mere spiritual affairs, or engaged in works of charity, religion and humanity, and yet his domicil will prevail over the innocence and purity of his life. Nay more, he may disapprove of the war. and endeavor by all lawful means to assuage or extinguish it, and yet, while he continues in the country, he is known but as an enemy. The same principle must apply, in the same manner, to a corporation. The objects, indeed, of the present corporation are highly meritorious and worthy of public favor; but, upon the doctrines of law, it must be deemed a British alien corporation, and as such liable to the imputation of being an enemy’s corporation, unless it can be protected upon other principles. Let us now advert to the second objection. which is. that the members of the corporation are all alien enemies. In the writ, it is expressly alleged, that all the members are aliens and subjects of the king of the United Kingdom of Great Britain and Ireland. It does not however hence necessarily follow, that they are alien enemies. This averment in the writ was proper, if not indeed indispensable, in order to sustain the jurisdiction of this court; for the corporation, as such, might perhaps have no authority whatsoever to maintain an action here, under the limited jurisdiction confided by the constitution of the United States to their own courts. But in the character of its members, as aliens, we have incontestable authority to enforce the corporate rights; and it has been solemnly settled by the supreme court, that for this purpose the court will go behind the corporate name, and see who are the parties really interested. Bank of U. S. v. Deveaux, 5 Cranch [9 U. S.] 61. And if, for this purpose, the court will ascertain who the corporators are, it seems to follow, that the character of the corpora-tors may be averred, not only to sustain, but also to bar, an action brought in the name of the corporation. It might therefore have been pleaded in this ease, even if the corporation had been established in a neutral country, that all its members were alien enemies; and upon such a plea, with proper averments, it would have deserved great consideration, whether it was not, pen-dente bello, an effectual bar. Where the corporation is established in the enemy’s country, the plea would a fortiori apply. But, although the corporation itself, and the members also, may be liable to the imputation of being alien enemies; yet that character does not necessarily or unavoidably attach to either. For aught that appears upon the face of the record, every member of the corporation may be now domiciled in the. United States, under the safe conduct or license of government. In such a predicament, it is clear, that though aliens, they would not be enemies, but might sue and be sued in our courts. Bynk. c. -25, § 8; Wells v. Williams, 1 Ld. Kaym. 282. And in respect to the corporation -itself, although established in Great Britain, it may have the safe conduct or license of the government of the United States for its property, and the maintenance of its corporate rights. It is clearly competent for the government, under the general rights of war, to grant letters of protection, and thereby to suspend the hostile character of any person; and when he has such protection, wherever he may be domiciled, he is to be considered, quoad hoc, a neutral. Bynk. c. 7; Usparicha v. Noble, 13 East. 332. Nor is there, in this respect, any difference between a corporation and an individual. And it would be highly injurious to humanity, as well as public policy, if institutions established in a foreign country for religious, literary or charitable purposes, might not, during war, obtain protection and patronage for their laudable exertions to soften — 766 — private misery and diffuse private virtue. To support the motion in arrest of judgment, it is necessary for the court to negative ever}- presumption, that could arise, of a safe conduct or license, either to the members or to the corporation itself. This cannot he done in the present case consistently with the principles of law. The suit was commenced in a time of peace, and every presumption, which can, ought to be made, to support it. It is sufficient, however, that by possibility the demandants, in their corporate capacity, and the capacity of their members, may have a persona standi in judicio, to entitle them to judgment. There is another consideration also, which may properly weigh in this case. The suit was commenced during peace, and, on the declaration of war, it was competent for the tenants to plead the hostile alienage of the demandants, if it existed, in bar to the further prosecution of the suit, in the nature of a plea puis darrein continuance, as it was pleaded in Le Bret v. Papillon. 4 East, 502. They did not so plead, and thereby have affirmed the ability of the demand-ants to prosecute the suit to judgment. Upon this ground, where the disability of alien enemy occurred before judgment, and on a scire facias on the judgment the disability was pleaded, the plea has been held bad. West v. Sutton, 2 Ld. Raym. 853. Another consideration derived from the express provision of the 9th article of the British treaty, of 1794, ought not to be omitted. That article stipulates, that British subjects, who then held land in the territories of the United States, and American citizens, who then held land in the dominions of his majesty, shall continue to hold them, according to the nature and tenure of their respective estates and titles therein, and may grant, sell and devise the same, to whom they please, in like manner as if they were natives; and that neither they, nor their heirs or assigns, shall, so far as respects the said lands and the legal remedies incident thereto, be regarded as aliens. This article has never been annulled, and therefore remains in full force. It deserves, and ought to receive, a liberal and enlarged construction. There can be no doubt, that corporations, as well as individuals, are within its purview; and the present claim not only may be, but in fact is, one which it completely embraces. The title of the de-mandants, as has been already stated, accrued before the revolutionary war. It was obviously the design of the contracting parties, to remove the disability of alienage, as to persons within the purview of the article, and to procure to them a perfect enjoyment and disposal of tlieir estates and titles. If, during war. their right to grant, sell or devise, such estates and titles were suspended. it would materially impair their value. If the remedies incident to such estates for trespasses, disseisins, and other tor-tious acts, were during war suspended, not only would the security of the property be endangered, but if war should last for many years, the statute of limitations of the various states, would, by lapse of time, bar the party of his remedy, and in some cases of his estate. This seems against the spirit and intent of the article, and puts the party upon the footing of an alien enemy, while the language concedes to him all the benefits of a native. Looking to the general moderation, with which the rights of war are exercised in modem times, under the policy, if not the law, of nations; perhaps it would not seem (for I mean not to give any absolute opinion) an undue indulgence, to hold, that as to all titles and estates within the article, an alien enemy may well maintain all the legal remedies, as in a time of peace. At least, it cannot be presumed, that in this favored class of eases, the party has not received the license or safe conduct of the government, to pursue his rights and remedies during the war. And unless such presumption' can be made, when there are no facts on the record to warrant it, the plaintiffs must be entitled to judgment. Upon the whole, the motion in arrest of judgment must be overruled. The other question, which has been argued upon the motion of the demandants, is yet of more délieacy and embarrassment. It is always an unwelcome task to call in question the constitutionality of the acts of a state legislature. It is still more unwelcome, when there has been an apparent acquiescence on the part of state tribunals, for whom this court cannot but entertain the most entire respect and confidence. The parties, however, have chosen to present the question before us, and we are bound to pronounce the law, as upon a careful examination we find it; and if an error be committed, it is a great consolation, that the decision here is not final, but a revision may take place before other judges, whose diligence, learning and ability, cannot fail to insure a most exact and well considered determination. The demandants contend, first, that the act in question is in contravention of the 2d, 3d, 12th, 14th and 20th articles of the bill of rights, in the constitution of New Hampshire; and of the 10th section of the first article, and the 9th article of the amendments, of the constitution of the United States; and is also repugnant to natural justice; and is therefore void. Secondly, that the act, if constitutional, extends only to suits in the state courts, and not to suits in the courts of the United States; and, at all events, not to suits, in which a foreigner is a part}. There is another objection, as to the shape in which the claims for the improvements are asserted in the pleadings, upon which it is unnecessary to say more, than that they have as much certainty, as has been deemed necessary in the practice of the state courts, and as seems — 767 — required by the act, and therefore, are good in substance. The objection, that the act had in contemplation actions in state courts only, between citizens of the state, cannot prevail. Whatever force such an objection might properly have in cases of personal contracts executed without the territories of a state, where a remedy should be sought in the courts of the United States, under circumstances, in which the state laws could afford no remedy, it is a general rule of the law of nations, recog-nised by all civilized states, that rights and remedies respecting lands are to be regulated and governed by the law of the place, where the land is situated. Huber, tom. 2, lib. 1, t.it. 3; Vatt. Law Nat bk. 2, c. 7, § 85; Id. bk. 2, c. 8, §§ 109, 110. Independent, therefore, of the act of congress of September 24, 1789 (.chapter 20, § 34), which declares, “that the laws of the states, except where the constitution, treaties, or statutes of the United States, shall otherwise require or provide, shall be regarded as rules of decision, in trials at common law, in the courts of the United States, in cases where they apply,” the laws of the state regulating titles and remedies to real estate, must, in the absence of other regulations by the United States, be, upon general principles, the rules of decision equally between foreigners and between citizens. In respect also to the constitution of the United States, the statute in question cannot be considered as void. The only article which bears on the subject, is that which declares, that no state shall pass “any ex post facto law, or law impairing the obligation of contracts.” There is no pretence of any contract being impaired between the parties before the court. The compensation is for a tort, in respect to which the legislature have created and not destroyed an obligation. Nor is this an ex post facto law within this clause of the constitution, for it has been solemnly adjudged, that it applies only to laws, which render an act punishable in a manner, in which it was not punishable, when it was committed. Calder v. Hull, 3 Dall. [3 U. S.) 386; Fletcher v. Peck, 6 Cranch [10 U. S.] 87. The clause does not touch civil rights or civil remedies. The remaining question then is. whether the act is contrary to the constitution of New Hampshire. Various clauses of that •constitution have been cited; but that which seems most directly pointed to the case, and which must (if any one can) govern it, is the 23d article of the bill of rights, which declares, that “retrospective laws are highly injurious, oppressive and unjust. No such laws, therefore, should be made, either for rhe decision of civil causes or the punishment of offences.” AVhat is a retrospective law. within the irue intent and meaning of this article? Is it confined to statutes, which are enacted to take effect from a time anterior to their passage? or does it embrace all statutes, which, though operating only from their passage, affect vested rights and past transactions? It would be a construction utterly subversive of all the objects of the provision, to adhere to the former definition. It would enable the legislature to accomplish that indirectly, which it could not do directly. Upon principle, every statute, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past, must be deemed retrospective; and this doctrine seems fully supported by authorities. Calder v. Bull, 3 Dall. [3 U. S.] 386; Dash v. Van Kleeek, 7 Johns. 477. The reasoning in these authorities, as to the nature, effect and injustice, in general, of retrospective laws, is exceedingly able and cogent; and in a fit case, depending upon elementary principies, I should be disposed to go a great way with the learned argument of Chief Justice Kent. Let us now consider the particular facts of the case at bar, and the provisions of the act of the 19th of June, 1805. Before the passage of that act, the demandants had a clear vested right and title in the demanded premises in fee, absolute and unconditional; and although the seisin was in another, yet the existing laws afforded a complete remedy to perfect that title by an union juris et seisinae, under judicial process. The de-mandants were also entitled, both at law and equity, not only to the land, but to all the improvements thereon, which were annexed to the freehold, by whomsoever made, under that vested right and title. The law imputed no laches to the demandants for not pursuing their legal remedy to recover seisin, for the time of the statute of limitations had not run against them; and it imposed no obligation to pay for any amelioration of the soil, or any erections, which had been made by any person claiming an adverse possession or seisin. Then came the act, which, in the third section, provides “that when any action shall be brought against any person for the recovery of any lands or tenements, which such person holds by virtue of a supposed legal title, under a bona fide purchase, and which the occupant, or the person under whom he claims, has been in the actual peaceable possession and improvement of for more .than six years before the commencement of the action, the jury which tines this action, if they find a verdict for the plaintiff, shall also inquire and by their verdict ascertain. the increased value of the premises by virtue of the buildings and improvements made by such person -or -persons, or those under whom he or they claim, and no writ of seisin or possession shall issue upon such judgment, until such plaintiff shall have paid into the hands of the clerk of said court, for the use of the defendant, or person or persons justly entitled thereto, such sum as — 768 — said jury shall assess, as aforesaid, which sum shall be paid to the clerk within one year after the verdict rendered by the jury, otherwise no writ of possession shall issue.” This section was to take effect from the passage of the act. The present action was brought in 1807, and if, as the tenants contend, the act applies to it, it must be upon the ground, that the six years’ possession under a supposed legal title is to be calculated backwards, from the time of the commencement of the action, although that time should not have elapsed after the date of the act. And in this view, the argument to support its constitutionality must be the same, as though the action were commenced immediately after the passage of the act. It may be admitted, that if this were a mere statute of limitations, barring the actions in the realty after a reasonable time, under the exercise of legislative discretion, its constitutionality could not be doubted. And if the statute had declared, that if a party entitled should, for six years after passing the act, or for six years after any ouster or disseisin in futuro, neglect to pursue his remedy for the recovery of his right, then the recovery should only be had upon the terms of the act, it might, perhaps, have fallen under the same consideration, for it would in effect be only a rigorous statute of limitations. Hut if the legislature were to pass an act of limitations, by which all actions upon past disseisins were to be barred, without any allowance of time for the commencement thereof in futuro, it would be difficult to support its constitutionality, for it would be completely restrospective in its operation on vested rights. Call v. Hagger, 8 Mass. 423. But the present cannot be considered as a statute merely regulating a remedy, and prescribing the mode and time of proceeding. It confers an absolute right to compensation on one side, and a corresponding liability on the other, if the party would enforce his previously vested title to the land. And unless he should comply within a given time, his title, or, what is in effect the same thing, liis remedy, is completely extinguished. It is not, therefore, in form, or. in substance, a modification of the remedy, but a direct ex-tinguishment of a vested right in all the improvements and erections on the land, which were annexed to the freehold. It also directly impairs the value of the vested right of the party in the land itself, inasmuch as it impairs the remedy, and subjects the party to burthens, which may render the right not worth pursuing; and that too upon past considerations, respecting which the party had incuired no legal-obligation, and had imputed 10 him no legal laches. If, indeed, it ought, as is alleged, to be the very essence of a new law, that' it is to be a rule for future cases, "nova constitutio futuris formam imponere debet. non praeteritis.” (Bract, lib. 4, fol. 228], and that it is against natural justice to apply it to past cases, it would seem to follow, that an act, which works the effects, which have been stated, ought to be deemed a retrospective law within the prohibition of the constitution of New Hampshire; for it is a law for the decision of a civil cause, which affects past cases; and has a retroactive operation. It is argued by the tenants’ counsel, that although there was no legal remedy, yet there was an equitable right in the tenants, before the statute, to compensation for the amelioration of the soil, and the improvements made by erections thereon; that upon the principles of natural justice, it is iniquitous that one man should enjoy the fruits of another man’s labor; that until a recovery actually obtained by the demandants, they had no vested title to such improvements, but the title remained in the tenants; and therefore the statute had no operation to devest previous rights. In this respect the case is like-ened to that of temporary fixtures and erections, made by a tenant for years during his term, in which the reversioner has never been supposed to have any interest wliatever. It is difficult to perceive the foundation of the equitable or moral obligation, which should compel a party to pay for improvements, that he had never authorized, and which originated in a tort. If every man ought to have the fruits of his own labor, that principle can apply only to a case, where the labor has been lawfully applied, and the other party has voluntarily accepted those fruits without reference to any exercise of his own rights. For if, in order to avail himself of his own vested rights, and use his own property, it be necessary to use the improvements wrongfully made by another, it would be strange to hold, that a wrong should prevail against a lawful exercise of the right of prop-eily. In the case of a tortious confusion of goods, the common law gives the sole property to the other party without any compensation. Yet the equity in such case, where the shares might be distinguished, would seem such stronger than in the present case. There would also have been plausibility in the argument, if the statute had confined itself to visible erections made by the tenant, who had been six years in possession, under a supposed legal title. But the improvements may be altogether in the soil, and even made by the original wi'ong doer, and yet the compensation must be allowed. And they may be just such improvements, as, in the case of a rightful tenancy, would at common law be deemed waste. It is sufficient, however, that no such equitable right, as is now contended for, is recognised in the law; and indeed it lias been deemed so far destitute of moral obligation, that even an express promise, to pay for improvements made by a person coming in under a defective title, has been held a nude pact. Frear v. Hardenbergh. 5 Johns. 272. As to the argument, that the demandants — 769 — liad no vested title in the improvements until a recovery, it is clearly unfounded in law. In respect to the amelioration of the soil by labor, (which is embraced both by the statute and the verdict) it would be absurd to contend, that the amelioration was a thing separate from the soil, and capable of a distinct ownership. In respect to erections, the common law is clear, that every thing permanently annexed to the freehold passes with the title of the land, and vests with it. And here lies the distinction as to fixtures during a lease. They are not deemed to be permanently annexed to the soil, and may, therefore, well be removed; and so indeed would the law be, as to like fixtures by a mere trespasser. Taylor v. Townsend, 8 Mass. 411. The right then to permanent erections follows as a necessary and inseparable incident ,to the right of the soil, and is not acquired, but is merely reduced into possession, by a subsequent suit. On the whole, if the statute must have a construction, which will embrace the case at bar, with whatever reluctance it may be declared, in my judgment it is unconstitutional, inasmuch as it devests a vested right of the demandants, and vests a new right in the tenants, upon considerations altogether past and gone. But there is a construction, which although not favored by the exact letter, may yet well stand with the general scope of the statute, and give it a constitutional character; and that is, to give it a prospective operation, so as to apply to improvements made after the statute, and where the possession has been for six years after its date. In deference to the legislature, this construction ought to be adopted, if by law it may. And upon the authority of Helmore v. Shuter, 2 Show. 17, 2 Mod. 310 (1 Freem. 400; 2 Lev. 227; 2 Jones, 108: 1 Vent. 330), and Couch v. Jeffries, 4 Burrows, 2400, and Dash v. Van Kleeck, 7 Johns. 477, where the wording of the statutes was equally strong, I do not at present perceive any difficulty in adopting it. In either view, the tenants can take nothing by their claims for improvements, and judgment must pass for the demandants, and a writ of seisin issue immediately non obstante veredicto quoad haec. See Fox v. Southack, 12 Mass. 143; Hutchinson v. Brock, 11 Mass. 119. Judgment was entered on the record as follows: All which being seen and considered, it appears to the court here, that the tenants are not by law entitled to the value of the buildings and improvements.so as aforesaid found by the verdict aforesaid, or to any part thereof, under the statute of New Hampshire in this behalf provided. Tt is therefore considered by the court, that the demandants recover their seisin and possession of the demanded promises, whereof the jury have by their verdict aforesaid found that they were dis-seised by the tenants — and that a writ of sei-sin immediately issue in this behalf; and further that the demandants recover of the tenants their costs of suit taxed at ——. And as to the residue of the demanded premises, that the tenants go thereof quit without day.