15 N.H. 525 | Superior Court of New Hampshire | 1844
Admitting for .the present that this is an equitable action, and that the defendant may make an equitable defence to it by way of set-off, still, upon what ground can this defendant assert the right to set off the value of the improvements ? The act provides that the increased value of the premises by virtue of the buildings and improvements shall be inquired into where the defendant holds the land by virtue of a supposed legal title under a bond fide purchase, and where the action is brought for the recovery of the lands or tenements. N. H. Laws 75, Ed. of 1830. If the defendant, when the writ of entry was brought, had been in possession for the period of six years, under a supposed legal title, he had an opportunity of. availing himself of the equitable provision in the statute; and if he came within the act, and omitted to avail himself of its benefits, he has no reason to complain of the want of equity. The case of Jackson vs. Loomis, 4 Cowen 168, goes entirely upon equitable grounds, and in the absence of such a statute as ours perhaps the doctrine of it ought to prevail. But it is said, in Withington vs. Corey, 2 N. H. Rep. 117, that the mere compulsory provision in our act, that the demandant shall pay the value of the improvements before he can have possession, seems to countenance neither the idea of a release of the action of trespass, nor a set-off in any way against the mesne profits.
The defendant in this case was in possession as a tenant without right. As a general principle, applicable to this class of cases, it cannot be properly said that one may enter into land without
Judgment on the verdict.
