Campbell, J.,
delivered the opinion of the court.
There is no error in the decision of the Circuit Court on the question of title to the land. The defendant below claimed under the same person from whom the plaintiff derived his title, and the plaintiff showed the better right. Indeed, the defendant showed none at all as against the plaintiff. True, he sought to show title derived from the State, which purchased the land when sold in 1876 for taxes accrued for the fiscal year 1875; but this deed conferred no title, both because it is not shown that the State purchased it, and because, if it *79did, it acquired no title, as the levy of county taxes by the board of supervisors of Hinds County in 1875 was void, because not made by the board in session at the court-house of the county or other place at which it was authorized by law to hold its sessions. It is contended that though the deed be void, as seems to be conceded by counsel, it had the effect to compel the plaintiff to deraign title independently of the com,mon source relied on by him, and which was sufficient, it is said, until it appeared that the defendant claimed from the State under the deed mentioned. The proposition is, that, although the deed conferred no title, it made color of title, and, therefore, the plaintiff was required to show title as against the world and recover on the strength of his title. This position is untenable. The plaintiff showed a right to recover as against the defendant. The defendant sought to defeat this right by connecting himself with a paramount outstanding title; but his effort failed, because the alleged outstanding title was shown to be nothing. It was not title. It was as harmless as if it had not existed. It is not a question of color of title, which is in some cases of great value, but it is a question of title, and, the deed from the State passing no title and the State having none, an outstanding title was not shown.
It was not erroneous to refuse to require the jury to deal with the eighty acres and the one hundred and sixty acres separately, in assessing mesne profits and damages, and the value of improvements. It would have been a mere favor to the defendant, at the expense of the plaintiff, which the court properly refused. While it might in some circumstances operate advantageously to a defendant, it might -be highly injurious to the plaintiff, and there is no authority .for it in the law, which fixes the rights of the parties. Without further .noticing the several grounds of error assigned, we proceed to consider the important practical question involved in the instructions given to the jury.
The court instructed the jury, in substance, that the plaintiff was entitled to rent of the land from year to year, as it was improved, during those years, and that the ’defendant was entitled to pay for his improvements at their cash value, at the time of trial, without any estimate .of what they were worth a.t *80a former time for which the plaintiff recovered rent. This rule denies to an occupant entitled to pay for all valuable improvements, of a permanent character and not ornamental, their value as constituting a factor in creating or enhancing the rent received by the successful owner in an action of ejectment. It allows the owner of the land rent wholly caused or increased by the improvements of the bona fide occupant, and denies to the occupant the benefit of his improvements which in whole or part produced such rent. This is not justice as between the parties, and is not what the statute, Code 1871, § 1557, was intended to effect. Before the statute, the courts held that trespass for mesne profits was an equitable action, and, to do equity between the parties, the plaintiff was entitled to. rents, and increased damages, beyond the rents, where circumstances made it proper and necessary, in order to make the plaintiff whole ; and the defendant who, in good faith, had made improvements of a permanent character, and beneficial to the owner, was allowed to set off against the demand for rents and profits the value of such improvements; the principle being that the owner of the land should get his land, with its improvements, and pay for its use and occupation, and compensation for any special injury beyond this, but that, to the extent of the mesne profits and damages accrued, he should pay the defendant the value of his improvements, which were beneficial to the owner in the enhancement of the value of his land, and which had enhanced its value, in the past, in the matter of rent. The statute aims to effect justice by preserving the right of the owner as it existed before, and by enlarging the right of the defendant, by giving him the right to assert his claim to pay for the value of his improvements, as against the mesne profits and damages, and against the land, if the value of the former is greater than the latter. Without the statute, the right of the defendant was to set off his claim for improvements against the mesne profits, and, if the value of the improvements exceeded the mesne profits, the defendant was without redress. The principle of the statute is the same as the rule of the courts ; but the statute is more favorable to the defendant, in securing hinrpay for the value of all his improvements of the character and under the circum*81stances mentioned by the statute, by setting- it off against mesne profits and damages, and if it exceeds those, by making it a charge on the land. The statute is silent as to the time with reference to which the value of the improvements is to be estimated. The estimate, of course, is to be made at the trial, but with reference to what time shall it be made ? It must be so made as to allow the defendant pay for all his improvements of the character designated. That is what the statute gives him, “ the value of all permanent valuable and not ornamental improvements.” How shall this right be made available to him? The value of the improvements, as formerly existing, may have greatly declined. Time with its destroying agency may have consumed valuable improvements in the production of rents and profits, which are awarded to the plaintiff. The improvements may have produced or increased the rents and profits, and sustained their decline in value as existing at the trial, in such production or increase. If the plaintiff recovers his land, and.rents and profits thus produced or enhanced, he thus recovers the improvements as they were during the time the mesne profits accrued, and he should not have the improvements or the benefit of them without paying for them. Improvements which contributed to swell the demand of the plaintiff as allowed should be paid for; otherwise the defendant is not allowed the value of all his improvements, and the plaintiff obtains them without .making compensation for them. The statute intends that the plaintiff shall have the improvements, but shall pay for them. If he recovers the land, with the improvements existing visibly on it at the time of recovery, his obligation to pay their value is not disputed. If he has been awarded mesne profits and damages produced by the improvements which have passed away in their production, in whole or in part, he recovers these improvements or their value in this shape — transmuted into money. Justice requires that the claim for improvements shall be coextensive in time with the allowance of rents and profits which they contributed to produce. The plaintiff shall have rent, and, if circumstances render it proper and necessary to make him whole, he is entitled to damages for waste or special injury beyond the measure of rents ; and the *82defendant is entitled to tbe value ' of all tbe improvements described in tbe statute, no matter when they were • made, so as thereby to compensate him for improvements which inure to the advantage of the plaintiff, whether by adding to the value of the land when recovered, or, retrospectively, by augmenting the amount of his recovery of mesne profits. This is justice between the owner and bona fide occupant, and that is what the statute was intended to effect.
The object is to deny to the successful plaintiff the rents which arise from improvements not paid for, and to secure to the defendant, who loses land and improvements, pay for the value of the improvements, to the full extent that they are recovered by the plaintiff, whatever is the shape in which he receives them. This is the rule in Chancery Courts. Tatum v. McLellan, 56 Miss. 352" court="Miss." date_filed="1879-01-15" href="https://app.midpage.ai/document/tatum-v-mclellan-7985171?utm_source=webapp" opinion_id="7985171">56 Miss. 352; Neale v. Nagthrop, 3 Bland, 551, 591. If the improvement does not inure to the benefit of the plaintiff, justice is done by denying the defendant the value of it; and, if the defendant can get no pay for an improvement, the plaintiff should not be allowed any rent, by reason of such improvement. Nixon v. Porter, 38 Miss. 401" court="Miss." date_filed="1860-04-15" href="https://app.midpage.ai/document/nixon-v-porter-8257575?utm_source=webapp" opinion_id="8257575">38 Miss. 401; In Miller v. Ingram, 56 Miss. 510" court="Miss." date_filed="1879-01-15" href="https://app.midpage.ai/document/miller-v-ingram-7985199?utm_source=webapp" opinion_id="7985199">56 Miss. 510, it was said, “ The successful plaintiff is to have the land and improvements, but is to pay for the latter.” In this opinion, we have shown how the owner is to pay for improvements. He must pay for them in a diminution of his demand for mesne profits to the extent that they arose from the improvements, or by an estimate of the value of the improvements as of the period when they contributed to the production of the mesne profits.
The court ruled correctly in holding that the defendant below was not protected by his payment of rent to Glover. It was his folly and misfortune to rent the plaintiff’s land from Glover, and paying Glover the rent for the plaintiff’s land did not affect his liability for it to the plaintiff. We find no error in the several rulings of the court, except in the denial to the defendant below of the right to have the value of all his valuable improvements considered as of the time when they contributed to the advantage of the successful plaintiff; but for that error the judgment will be reversed, and the cause remanded for a. new trial in accordance with this opinion. ; Judgment accordingly.