Pierce v. Strickland , 25 Me. 440 ( 1845 )

The opinion of the Court, Shepley J. dissenting therefrom, so far as it respected the damages, was drawn up by

TenNey J.

The evidence in these cases being the same, which was adduced in that of Treat v. Strickland & al. 23 Maine R. 234, the demandant is entitled to judgment for possession, upon the principles of that case ; he seeks also to recover damages against the tenants for the rents and profits of the premises, from the time of their entry, under the Revised Statutes, c. 145, <§>14. The tenants admit the right of the demandant to damages for rents under a proper declaration, but deny their liability for such as were received for the erections made upon the land by E. & S. Smith, after the conveyance to Robert Treat and the father of the demandant, by deed of Dec. 18, 1832. The claim for rents and profits is not set out in the declarations of the writs; it has been settled by this Court, in a case not yet reported, that it should bé done; but as the demandant has the right reserved to him in the agreement of the parties, to move for the amendment, the writs may be amended in this particular.

The 15th section of the chapter referred to, provides that the tenant shall be liable for the clear annual value of the premises for the time during which he was in possession thereof, deducting all lawful taxes and assessments on the premises, that shall have been paid by the tenant, and all the necessary and ordinary expenses of cultivating the land or collecting the rents, profits or income of the premises ; and by the 16th section, in the estimation, the value of the use by the tenant of any improvements made by himself or those under whom he claims, shall not be computed or allowed to the demandant. The section last referred to, may apply to cases where the occupation of the tenant has been such, as not to entitle him to the benefit of the 23d section of the same chapter, and he has made improvements, the use of which have been valuable; of this, however, we give no opinion; but he is allowed to retain only the value of the use of improvements, made by himself or those under whom he claims the land. A person having made improvements upon another’s land, without consent of the owner, or being in possession under one who made them, without such consent, does not become entitled to the value of the improvements themselves, unless he sustains to the proprietor, the relation, which brings him within the provision of the 23d section ; if the tenant, having the right secured by that provision, abandons the possession, and the lawful owner takes it, the tenant relinquishes his rights with his possession, and no one can afterwards avail himself of the improvements previously made, against the owner, and on no principle, can improvements made without the consent of the owner, where the tenant does not claim to hold the land by virtue of the buildings and improvements, be a subject of purchase after the one who made them has gone out of possession, having no interest whatever in the land.

The case finds, that the erections on the land at the time that Samuel Smith conveyed to Treat and the demandant’s ancestor, in 1832, were removed, and new and valuable erections were made in the years 1833, 1834 and 1835, by Edward Smith and Samuel Smith. There is no suggestion that any of the erections, for which rents are claimed, were made by the tenants ; and upon an examination of the deeds introduced in the case, we are satisfied they wore not made by any person or persons, under whom they claim.

The demandant has the title in the premises, which his father derived by the deed to himself and Robert Treat from Samuel Smith. This deed was of the whole of the wharf or gore lot and an undivided half of the twenty-three feet strip, one undivided half of each portion conveyed, being the premises claimed in these actions. The grantees at the time of the conveyance, executed a bond to Edward Smith and Samuel Smith, to convey to them the same land on the fulfilment of certain conditions; the conditions were not fulfilled and the obligors wore released from their obligation therein contained. The deed to Treat and Pierce, and the bond from them did not constitute a mortgage, and the former gave to the grantees an absolute and indefeasible title.

The tenants derive their title to the twenty-three feet strip under the levies of two executions in favor of Amos M. Roberts against Samuel Smith & al. one made Dec. 23, 1836, and the other Sept. 29,1837 ; the former, of two undivided sixth parts, and the latter, of one undivided sixth part; the returns of the extent so made, recognize the existence and validity of the deed from Smith to Treat and Pierce. Roberts conveyed to the Central Bank all his interest arising from these levies, by deed of Dec. 27, 1838, referring to the executions and the returns thereon for a description. The tenants also introduced a deed from S. Smith to John Fiske, releasing one undivided sixth part of the strip, dated Sept. 29, 1837; also a deed from S. Smith to John Fiske, dated Dec. 4, 1837, releasing the right of redeeming the “ remaining two sixth” parts, from Treat and Pierce, of the strip, which is described to be twenty feet wide, and also the right of redeeming the other parcel described in the same deed, which' is the wharf or gore lot, that is demanded in this action, referring to the deed, to Treat & Pierce in terms; they also adduce a deed from Fiske to Arte-mas Leonard, dated November 7, 1839, releasing all his interest to one sixth and to two sixth parts of the strip and to the whole of the wharf or gore lot, and a deed from S. Smith to Leonard, S. P. Strickland and H. Strickland, dated July 30, 1840, releasing in certain proportions to each his right in a parcel of land, which includes that claimed in these suits ; and also deeds of the Central Bank of a part of their interest to S. P. Strickland and H. Strickland.

After S. Smith’s deed of Dec. 18, 1832, he was the owner of one undivided half of the strip, but had no remaining interest in the wharf or gore lot; his title to the strip was covered by the levies of Roberts, and the creditor’s title passed to the tenants, the debtor not having redeemed the land at any time. Till the time when Roberts conveyed, after his levies, he was the owner of one undivided half of the strip, and Treat & Pierce of the other; neither Smith, or any other, had the least interest therein ; the possession was according to the title; and if Edward or Samuel Smith or both were upon the premises, it was in submission to the rights of Treat & Pierce. The deed of Smith to Fiske, dated Dec. 29, 1837, if of the sixth part that day levied upon by Roberts, ceased to be operative after one year; if of the grantor’s right in that proportion of the undivided half in Treat & Pierce, it was equally inoperative, and the subséquent deed from Smith to Fiske of two sixth parts purports to convey only the right of redeeming of Pierce and Treat, which could convey nothing, as the latter had an absolute title. When the two last named deeds were executed, the grantor therein had ceased to have the least title to any interest, which he could transfer, excepting the right of redemption from Roberts’ levy of one sixth part, and neither he or his grantee availed themselves of that right; the lawful owners being in possession, Fiske obtained none by these deeds; and when he gave his deed to Artemas Leonard, the time of redeeming the one sixth of the strip from Roberts had expired, and he had by his other deed only the right to redeem from those having then an absolute title, and nothing could pass to the person named as grantee. The deed of Smith, dated July 30, 1840, was equally invalid ; he had neither title or possession, and the erections made by him were not his property and could not be transferred to the tenants.

The referee agreed upon by the parties, was authorized “ to ascertain and report the net rents and profits of one undivided half of the wharf or gore lot, and one undivided fourth part of the twenty-three feet strip.” “ The calculation in all cases to be made from the time the tenants entered” — “ said report to be taken by the Court as facts ascertained and settled, so far as the amount of rent is concerned” —C! and the amount of rents was to be ascertained and reported, upon different hypotheses, and one or the other should be decisive according to the construction, which the Court should give to the statute. The referee reported the amount of net rents upon the proportion claimed by the demandant,” of the premises, with the buildings and improvements thereon, as the same were, when the tenants respectively entered, and have been since ; and the calculations are stated in the report to be all “ based upon the time admitted by the parties to be correct, it being from the first day of January, 1839, to the first day of July, 1844.” The agreement of the parties on the question, for what time, the demandant was entitled to recover damages for the rents and profits, is conclusive upon the tenants, and they are not at liberty to contend, that they are not liable from the time of their entry.

A default is to be entered ; judgment for possession; and, in the opinion of a majority of the Court, for the sums in damages, reported as above by the referee.