Roe v. Doe ex dem. Long , 47 Ga. 540 ( 1873 )

McCay, Judge.

The common law doctrine that a judgment is presumed satisfied at the end of twenty years is well settled by authority, both in England and in America: Flaver vs. Bollingbrook, 1 Strange, 639; The State of Tennessee vs. Virgin, 36 Ga., 391; Burt vs. Casey, 10 Ga., 178; see, also, the cases cited by Judge Nesbit, in 10 Ga., 178. The case of a defendant who has gone into possession after the commencement of the suit, and who is made a party defendant, by amendment, is very different from the case of adding a new lessor. The latter case is, as to the now lessor, a new suit, and as this Court has held, the statute runs against him — the new party — until he brings his suit, or is brought in as a plaintiff, that recovery may be had on his title: See 30 Ga., 873; 38 Ga., 439. But the case at bar is the adding of a new defendant, one who has gone into possession since the suit was brought. Yfhen he took possession he went into the shoes of his predecessor. Suit was pending against that predecessor, and by operation of law the suit passed over in its effects to him. He, the present defendant, would be bound by the judgment, as to the title, even if he were not made a party. It would make mere play of the proceedings of a Court to permit a party to escape the effect of a suit and a judgment, by letting a third party have the possesession, and drive the plaintiff to a new suit against him.

The only necessity for making the new tenant a party at all is to hold him for the mesne profits, and if he has gone in after the commencement of the suit, and holds under the persc^i Avho was first sued, or is in as his successor, under the same right, we think it only fair to charge him for all the mesne profits he has received. And this is specially true under our law, which does not permit a new action for mesne profits, and authorizes all parties at interest to be made parties plaintiff or defendant. See Revised Code, sections 3281, 3284, 3288. The plea of improvements as an offset to the rents is an equitable defense, and should be regulated by the principles of justice and equity. The Revised Code, section 2855, says: “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.” The words of the Act do not confine this to the improvements made by the defendant. If the defendant is, bona fide, in possession under a claim of right, with a warranty from the previous possessor, who has made improvements, it is only just that he should have the benefit of those improvements, so far as they are in excess of the rents due from the first possessor. The present defendant has bought the property as it stands, if he be a bona fide holder. The plaintiff gets the improvements by his judgment, and as the defendant succeeds under his deed to all the rights of his warrantor, we think there is great equity in allowing him to set up whatever his warrantor might have done.

The language of our Code, section 4855, is: “value of improvements,” not “cost of improvements.” Section 3416 is still stronger; there the language is, “ when the value of the premises has been increased by the repairs or improvements made,” and again, 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.

Judgment reversed.