Jackson v. Loomis

4 Cow. 168 | N.Y. Sup. Ct. | 1825

Curia, per

Savage, C. J.

Though 1 find no cases in point upon the question presented, either in England or this state, there are several which bear upon it. In the case of Van Alen v. Rogers, (1 John. Cas. 281,) the defendant held the premises under a contract with the devisor of the plaintiff. In an action for mesne profits, the defendant offered to prove that by permission of the original owner, he built a house, barn and store then occupied by the plaintiff. The Court say the improvements were made antecedent to the plaintiff’s title; if the defendant is entitled to compensation, he must seek it from the personal representatives of the devisor ; not from the plaintiff. They do not say what they would have held, if the original owner had brought the suit. In Murray v. Gouverneur, (2 John. Cas. 441-2, in error,) Kent, J. who gave the opinion of. the Court, says, “ as to. the sum expended for repairs, it. may be left for liquidation in .an action for the mesne profits, if the respondents should think proper to sue for the rents and profits. The action for mesne profits. is a liberal and equitable one, and will allow of every kind of-equitable defence.” In Moore v. Cable, (1 John. Ch. Rep. 387-8,). the question was whether a mortgagee in possession was entitled to his improvements against: the mortgagor, applying to redeem. The Chancellor decided he. was not. but that the mortgagee should not beholden to allow for rents. and profits, which had exclusively arisen from his own expenditures in improvements ; and that he should be allowed for necessary repairs,, though not for clearing land.

.There is certainly no reason, in. general, why the owner of land should be compelled to pay for improvements which he neither 'directed nor desired, as a condition on which he is to gain .possession of his property. But when an occupant has taken possession under, a bona fide purchase, and made permanent" improvements, it is very hard for him to lose both land and improvements. If the plaintiff is not content with acquiring possession of his property in an improved condition,- after he has neglected to assert his title for a number of years, it is certainly equitable that the defendant should be allowed the value of his improvements, made in good faith, to the extent of the rents and profits claimed. This view of the subject is fully supported by Green v. Biddle, (8 Wheat. Rep. 81, 82,).and the authorities there cited, especially GoulteiJs case, (5 Co. Rep. 30.) Most clearly the defendant should not be compelled to pay an enhanced rent in consequence of • his own improvements. The defendant is entitled to a new trial.

New trial granted.^(a)

(a) ■ (a) The value of improvements made by the defendant may bo set off against a claim for mesne profits; but profits before-the demise laid should be first deducted from the value of the improvements. (Hylton v. Brown, C. C. April, 1808, Pennsylvania. "Whart. Dig. Ejectment, I. pl. 74, p. 188, M. S. Reports.)