not allowed." In another Massachusetts case, the owner of land died leaving a widow and children; ten years later A. married the widow, had children by her, and they lived on the land sixteen years longer. At various times he made improvements, believing his wife to be the owner of the land. After the death of the wife the children brought a writ of entry and it was held that A. was not entitled to the value of the meliorations."

In most of the United States, improvements cannot be pleaded unless mesne profits are claimed."

TRESPASSER.

It has been shown that the English or common law ignored any demand made by a defendant in an ejectment suit for the value of meliorations placed by him, in good or bad faith, on the land of the true owner, and that the civil law and equity refused to follow what seemed a too harsh and inequitable treatment of the defendant, but acknowledged his right, when a bona fide occupant, to mitigate the mesne profits by the betterments placed by him on the land.

With the exception of two or three countries as Scotland, Spain and France, and there only to a limited extent, jurists did not attempt to so pervert the principles underlying this equitable defense as to permit a trespasser, or one acting in moral fraud, to reduce the mesne profits by this plea.

Indeed, the very cause for allowing this indulgence at all was the innocence of the one making the expenditures, in ignorance of any adverse claim, free from any notice of a disputed title, and holding himself under color of title. A mala fide possessor, therefore, is deserving of no sympathy at the hands of the law, for losses he may suffer by being deprived of his improvements without compensation. Were one with notice of a paramount outstanding title permitted this plea, not only would it be a departure from the very fundamental principles of the equity doctrine, but it would, besides, be bad policy, as tending to encourage a reckless disregard of the rights of others, since what was originally intended as relief to one displaying honesty of purpose, might be applied by another with corrupt intent to enrich himself at the expense of the property owner. In the United States,

Spalding vs. Chelmsford, 117 Mass. 393. Crosby vs. Dracut, 109 Mass. 206.

O'Brien ts. Joyce, 117 Mass. 360.

Leaened vs. Corley, 43 Miss. 687.

few statutes allow a trespasser to set off meliorations; this is only sanctioned to one acting in good faith.*

If a man has acted fraudulently, and is conscious of a defect in his title, and with that knowledge expends a sum of money on improvements, he is not entitled to avail himself of it."

Mr. Justice Bradley says: "Was it ever known that a fraudulent purchaser of property, when deprived of his possession, could recover for his repairs or improvements, or for encumbrances lifted by him whilst in possession? If such a case can be found in the books, we have not been referred to it.

"Whatever a man does to benefit an estate, under such circumstances, he does in his own wrong. He cannot get relief by coming into a court of equity."

On this point, now under discussion, probably no case has attracted as much attention and been as often cited as Jackson vs. Ludeling. Here the opinion of the court was delivered by Mr. Justice Bradley, who seems to be the only authority in this country for the assertion that the civil law permitted a mala fide possessor to offset the value of improvements. However this may be in civil law, equity certainly does not accord any such privilege to one occupying in bad faith. Mr. Justice Field dissents in this case as follows: "This court has held after elaborate consideration that they were possessors in bad faith, having obtained control of the road fraudulently. I know of no law and no principle of justice, which would allow them anything for expenditures upon property they wrongfully obtained and wrongfully witheld from the owners, who were constantly calling for restitution. And courts of chancery do not give to an occupant compensation for improvements, unless there are circumstances attending his possession which affect the conscience of the owner, and impose an obligation upon him to pay for them, or to allow for their value against a demand for the use of the property. To a possessor whose title originates in fraud, or is attended with circumstances of circumvention and deception no compensation for improvements is ever allowed."

Woodhull vs. Rosenthal, 61 N. Y., 382. Wood vs. McLellan, 56 Miss. 352. Wales vs. Coffin, 100 Mass. 177. 277.

y3 Sugden's Vendors, p. 436.

2 R. R. Co. vs. Souter, 13 Wall, 517.

a 99 U. S. 537.

Wood, 83 N. Y. 575; Tatem vs.
Frear vs. Hardenburg, 5 Johns

And alluding to the distinction, as drawn by the civil law, between the improvements of a bona fide and mala fide occupant, he thus expresses himself: "The learned counsel for the appellants who argued this case showed, I think, conclusively by reference to numerous adjudications and approved text-writers, that the civil law, as enforced in Europe and Louisiana, draws the same line of demarcation between the possessor in good faith and the possessor in bad faith in allowing for improvements and expenditures on the property of another." In support of which, he quotes from Pothier, after which he continues: "The civil law as thus stated corresponds with what the great Chancellor of England said of the interference of equity to allow one the value of improvements on another's property. If a person, he said, really entitled to the estate will encourage the possessor of it to expend his money in improvements, or if he will look on and suffer such

penditures, without apprising the party of his intention to dispute his title, and will afterwards endeavor to avail himself of such fraud, the jurisdiction of equity will attach in such a case. But does it follow from thence that if a man has acquired an estate by rank and abominable fraud, and shall afterwards spend his money in improving the estate, that therefore he shall retain it in his hands against the lawful proprietor? If such a rule shall prevail, it will certainly justify a proposition which I once heard. stated at the bar of the Court of Chancery, that a common equity of this country was to improve a man out of his estate."

GEORGIA DECISIONS.

An inspection of a few Georgia decisions will show the construction put upon sections 2906 and 3468 of the Georgia Code, by the Supreme Court of that State, and will demonstrate the importance of a reconstruction of the State laws.

In the case of Beverly and McBride vs. Burke," it was decided, that a trespasser can set off repairs against profits, if the repairs have increased the profits, but the profits cannot be decreased below the sum which the premises would have been worth without such repairs. This decision calls attention to the clause, in section 3468 of the Georgia Code "a trespasser cannot set off improve. ments in an action brought for mesne profits, except when the value of the premises has been increased by the repairs or improvements which have been made," Now, that part of this statute

b 9 Ga., 440.

which reads, "except when the value of the premises has been increased by the repairs or improvements which have been made," should be considered superfluous, for even a bona fide occupant cannot reduce the mesne profits by meliorations, unless they are permanent and increase the value of the land, a fortiori, a mala fide possessor cannot. It, therefore, follows from our statutory law, that both occupants in good faith and trespassers, can mitigate mesne profits by the betterments, provided they are permanent and of value to the land, the only difference appearing from the Code, in the positions of the two, is that the latter cannot diminish the profits, "below the sum which the premises would have been worth without snch improvements or repairs." The wording of section 2906 of the Code implies that the improvements of a bona fide occupant can be set off only to the extent of the mesne profits, it reads, "against a claim for mesne profits, the value of improvements made by one bona fide in possession, under a claim of right, is a proper subject matter of set off." Do not the initial words, "against a claim for mesne profits," describe the amount or object against which the improvements are to be set-off? It would surely seem so, and this is the view taken of it by the court in the case of Willingham vs. Long. McCay J. not only allowed the defendant to set off against mesne profits the value of his own improvements, but also the betterments of the previous possessor, so far as the meliorations of the previous possessor were in excess of the mesne profits charged against him. By this, showing that the previous possessor had not been allowed to charge the excess of the value of his own improvements over the mesne profits, against the value of the land itself. And here, also, the court said, "the sum allowed is not to be so great as to diminish the profits below what the premises would have been worth without the improvements." And in Thomas vs. Malcolm, Judge Warner maintains that a bona fide occupant should be permitted to reduce the mesne profits by betterments under the restrictioon of the latter part of section 3468 of the Code, which is, "not below the sum which the premises would have been worth without such improvements or repairs," or in other words, to the extent of the mesne profits and not as against mesne profits and the land, upon the idea that if a trespasser has this privilege, a bona fide possessor should certainly c Improvements-p-14.

d 47 Ga., 540.

e 39 Ga., 328-333.

have it. In the case of McPhee vs. Guthrie & Co., Judge Warner expressed his opinion as to the rights of a trespasser, but this is merely an obiter dictum, as the claimant was not a trespasser, and it was not an action for mesne profits, but an action to subject the improvements put on the land to the payment of the mortgage debt.

The case of Dean vs. Feeley is important, even though the question of how far a defendant can avail of his plea of set-off was not before the court, and its references to this point were entirely dicta. Mr. Justice Hall delivered the opinion of the court: "No conditions whatever are annexed to the set-off of one bona fide in possession under a claim of right, who has made improvements, none such, at least, as appears in the last section of the Code above cited, as that the improvements or repairs may diminish the amount of mesne profits only to what the premises would have been worth had not such improvements and repairs been made."

The idea this clearly conveys is that, if a trespasser can set off the value of improvements against the mesne profits, a bona fide occupant should be treated with greater liberality in this respect, and so recover the entire value of improvements, even though. they exhaust the mesne profits and encroach upon the value of the premises. This is, in fact, stated in unmistakable language: "A more liberal one (rule) is prescribed for those who are in possession bona fide under a claim of right. Their right to set-off is not fettered by any such limitation; it is unconditional and without qualification; and such occupants, in equity and justice, as well as upon principle, should hold a better position in this respect than mere wrong doers." This obiter dictum goes farther than any decision in Georgia, in its intention of permitting a bona fide possessor to mitigate the mesne profits by the meliorations and granting for the excess a lien on the land. It will be conceded that the same relief should not be given to a mala fide occupant as to one acting in good faith; and that, as sections 2906 and 3468 now exist, the distinction can only be drawn by allowing a bona fide occupant to recover the entire value of the betterments, since a trespasser gets credit for them to the extent of mesne profits.

f 51 Ga., 83-88.

g 69 Ga., 804.