Jackson ex dem. Van Denberg v. Bradt , 2 Cai. Cas. 303 ( 1805 )

Thompson, J.

delivered the opinion of the court. Under the facts in this case the question is, whether the defendant stands in a situation which entitles him to a compensation for his improvements under the statutes referred to? We think not. At the *time Bernardus Bradt put the defendant into possession, he did not claim to hold either an estate in joint tenancy or in common in the premises, but he claimed the whole in seve-ralty. It was held in like manner by his children, until the year 1797, when they were compelled to convey a moiety to the lessors of the plaintiff, and those under whom they claim. The cases contemplated by the statute were thsoe where a part owner or a proprietor who recognized' the interest, or right of others with him, should make or authorize improvements to be made. The statutes look to a partition, and the uncertainty where the shares will fall. In such cases good faith requires indemnity for improvements, but not so where the improvements have been made in defiance of, and adversely to, the claims of every body else. To compensate the defendant for his improvements, prior to 1798, would be repugnant to the decree of the court of appeals, and to the defendants’ deed given in pursuance of such decree. It is presumable that all equitable claims, which the parties to that decree might have had, were taken into consideration. The deed is absolute and unconditional, and must pass the improvements as well as the fee of the land. Besides, the plaintiffs showed title to but ten twelfths of the premises, and, therefore, come into possession only as tenants in common with the defendant, and it cannot be just that he should receive compensation for all his improvements, and still retain two twelfths of them. Ho rule of apportionment is appointed by the act. Ct contemplates only cases where the rights, or shares, in the premises, are reduced to estates in severalty, and ex ■elusive possession claimed. The opinion of the court, therefore, is, that the defendant is not entitled to compensation for his improvements.

Application denied.