The opinion of the Court was delivered on April 24, 1846, as drawn up by
Shepley J.
This is a writ of entry by which the possession of certain lands in Windham is demanded. A farm, comprising the premises, was formerly owned by Jonathan [526]*526Varney, who by his will, proved on September 10, 1806, devised the same to his wife during her natural life. She was afterward married to the tenant, and continued to reside with him upon it until her death on April 4, 1841. It was sold to Daniel Howe by a collector of direct taxes assessed under a law of the United States, and was conveyed to him on August 11, 1818. He on the same day conveyed his right to it by a deed of release to Joseph Staples. The tenant and his wife by a. like deed, conveyed all their right to it to Staples, on the fourth day of November following. And Staples by a like deed, conveyed all his rights to the tenant on Jan. 9, 1819.
The legal effect of all these proceedings, so far as the rights of the tenant could be affected by them, was. determined in the case of Varney v. Stevens, 22 Maine R. 331. In that case it was decided, that he must be considered to have been in possession of an estate for life under a legal title to it, and that he could not therefore be regarded as holding the estate adversely to the title of the reversioners during the life of his wife, by virtue of a possession and improvement. Since the determination of that estate, he must be considered as claiming to hold by an adverse title. As the demandant claims an undivided portion of the estate by conveyances from some of the heirs at law, made while they were thus disseized by the tenant, he could not according to the rules of the common law maintain this action. The statute, c. 145, § 6, provides, that “ the demandant shall not be required to prove an actual entry under his title, but proof, that he is entitled to such an estate in the premises, as he claims, as heir, devisee, purchaser, or otherwise, and also, that he has a right of entry therein, shall be deemed sufficient proof of the seizin alleged in the declaration.” This section alone would not authorize the demandant to maintain the action. He could not prove, that he had a right of entry. For a conveyance made by a person disseized to another not in possession, would not, by the rules of the common law, convey even a right of entry. But those rules have in this respect been changed by statute, c. 91, § 1, which provides; ((when any person shall make a deed of any lands or other [527]*527real estate owned by him in severalty, or in common with others, acknowledged and recorded in the manner prescribed in this chapter, whether at the time of the execution and delivery of the deed he is seized or not seized of such lands or estate, but to or for which he has a right of entry, such lands or estate, or all the title or interest, which the grantor has in the same, shall pass by such deed of conveyance as effectually, as if the grantor was at the time of the conveyance, seized of the same.” However great may be the mischiefs anticipated by such a change of the common law, as will permit dormant titles to be purchased from persons disseized, who have a right of entry, it has been the pleasure of the legislature thus to authorize it, by language too clear and decisive to admit of any different construction. The heirs at law of Varney, from the facts presented, appear to have had a right of entry into the premises, when the demandant obtained conveyances from some of them, and he thereby brings his case within the provisions of the statute, c. 145, <§> 6, by which he may maintain the action by proof of a right of entry, without any proof of an actual entry.
The tenant offered to prove, that the estate had been increased in value by proper and judicious improvements made upon it by him. By the act of March 4, 1843, the sections of statute, c. 145, from the 26th to the 45th inclusive, except the 35th, are made applicable “ to all real actions now pending or hereafter brought by a reversioner or a remainder man, or his or their assigns, after a termination of a tenancy in dower, or of any other life estate, against the assignee or grantee by deed of or from the tenant of the life estate, or against the heirs at law, or legal representatives of such tenant.” The effect of this legislation would seem to be to authorize the grantees, heirs, or legal representatives, of a tenant for life to claim and obtain compensation for the increased value of the premises by reason of all proper and judicious improvements made upon them by him or them, by the proceedings in an action brought to recover possession of them, although such tenant for life, or his grantee, may not have held the premises by an adverse [528]*528possession, or for any particular period of time. And to do it even in cases, where by the existing laws those improvements may have become a part of the estate of inheritance before the passage of the act of March 4, 1843. For the act makes those sections applicable to all such actions between such parties without regard to the facts or circumstances, which have occurred in any particular case before its enactment.
By the common law permanent improvements made and annexed to the freehold, by a tenant for life or years, became a part of the estate of inheritance. Elwes v. Mann, 3 East, 38. The act of March 4, 1843, appears to have been passed with a knowledge, that such was the law. For if the improvements, to which it refers, were not so connected with the freehold, that they became part of the estate, the person making them, or his assignee or legal representative, would have been entitled to the benefit of them by removing them without any statute provision.
The legislative department of the government may by law determine, that a tenant for life shall have the right to make permanent improvements upon the estate, and that he or those claiming under him shall be entitled to receive compensation for the value of them to be ascertained in such mode, as it may judge best. In many conceivable cases such statute provisions may be alike desirable for the promotion of the best interests of the parties entitled to the estate and for the public welfare. Courts of equity of general jurisdiction have been so sensible of this, that they have at times interposed to aid or permit such improvements to be made by a tenant for life, or to make compensation for them. In the case of Hibbert v. Cook, 1 Sim. & Stu. 552, the vice chancellor ordered compensation to be made to a widow, who was a devisee for life, out of her former husband’s personal estate for expenses incurred by her in finishing a new mansion house on the devised estate, which house the testator had nearly completed before his death. But he refused to make any compensation for repairs, which she had made upon it in consequence of an injury by the dry rot. While the lord chancellor would [529]*529not, in the case of Nairn v. Majoribanks, 3 Russ. 582, authorize a new roof to be put upon a mansion house by a tenant for life at the expense of the testator’s estate, oven if it should appear to be for the benefit of all parties interested in the estate. In the case of Cogswell v. Cogswell, 2 Edw. 231, it appeared, that city lots with buildings upon them had been devised for life. That ten feet were taken from the fronts of the lots after the death of the testator to widen the street, by which the buildings upon the lots were destroyed.
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The opinion of the Court was delivered on April 24, 1846, as drawn up by
Shepley J.
This is a writ of entry by which the possession of certain lands in Windham is demanded. A farm, comprising the premises, was formerly owned by Jonathan [526]*526Varney, who by his will, proved on September 10, 1806, devised the same to his wife during her natural life. She was afterward married to the tenant, and continued to reside with him upon it until her death on April 4, 1841. It was sold to Daniel Howe by a collector of direct taxes assessed under a law of the United States, and was conveyed to him on August 11, 1818. He on the same day conveyed his right to it by a deed of release to Joseph Staples. The tenant and his wife by a. like deed, conveyed all their right to it to Staples, on the fourth day of November following. And Staples by a like deed, conveyed all his rights to the tenant on Jan. 9, 1819.
The legal effect of all these proceedings, so far as the rights of the tenant could be affected by them, was. determined in the case of Varney v. Stevens, 22 Maine R. 331. In that case it was decided, that he must be considered to have been in possession of an estate for life under a legal title to it, and that he could not therefore be regarded as holding the estate adversely to the title of the reversioners during the life of his wife, by virtue of a possession and improvement. Since the determination of that estate, he must be considered as claiming to hold by an adverse title. As the demandant claims an undivided portion of the estate by conveyances from some of the heirs at law, made while they were thus disseized by the tenant, he could not according to the rules of the common law maintain this action. The statute, c. 145, § 6, provides, that “ the demandant shall not be required to prove an actual entry under his title, but proof, that he is entitled to such an estate in the premises, as he claims, as heir, devisee, purchaser, or otherwise, and also, that he has a right of entry therein, shall be deemed sufficient proof of the seizin alleged in the declaration.” This section alone would not authorize the demandant to maintain the action. He could not prove, that he had a right of entry. For a conveyance made by a person disseized to another not in possession, would not, by the rules of the common law, convey even a right of entry. But those rules have in this respect been changed by statute, c. 91, § 1, which provides; ((when any person shall make a deed of any lands or other [527]*527real estate owned by him in severalty, or in common with others, acknowledged and recorded in the manner prescribed in this chapter, whether at the time of the execution and delivery of the deed he is seized or not seized of such lands or estate, but to or for which he has a right of entry, such lands or estate, or all the title or interest, which the grantor has in the same, shall pass by such deed of conveyance as effectually, as if the grantor was at the time of the conveyance, seized of the same.” However great may be the mischiefs anticipated by such a change of the common law, as will permit dormant titles to be purchased from persons disseized, who have a right of entry, it has been the pleasure of the legislature thus to authorize it, by language too clear and decisive to admit of any different construction. The heirs at law of Varney, from the facts presented, appear to have had a right of entry into the premises, when the demandant obtained conveyances from some of them, and he thereby brings his case within the provisions of the statute, c. 145, <§> 6, by which he may maintain the action by proof of a right of entry, without any proof of an actual entry.
The tenant offered to prove, that the estate had been increased in value by proper and judicious improvements made upon it by him. By the act of March 4, 1843, the sections of statute, c. 145, from the 26th to the 45th inclusive, except the 35th, are made applicable “ to all real actions now pending or hereafter brought by a reversioner or a remainder man, or his or their assigns, after a termination of a tenancy in dower, or of any other life estate, against the assignee or grantee by deed of or from the tenant of the life estate, or against the heirs at law, or legal representatives of such tenant.” The effect of this legislation would seem to be to authorize the grantees, heirs, or legal representatives, of a tenant for life to claim and obtain compensation for the increased value of the premises by reason of all proper and judicious improvements made upon them by him or them, by the proceedings in an action brought to recover possession of them, although such tenant for life, or his grantee, may not have held the premises by an adverse [528]*528possession, or for any particular period of time. And to do it even in cases, where by the existing laws those improvements may have become a part of the estate of inheritance before the passage of the act of March 4, 1843. For the act makes those sections applicable to all such actions between such parties without regard to the facts or circumstances, which have occurred in any particular case before its enactment.
By the common law permanent improvements made and annexed to the freehold, by a tenant for life or years, became a part of the estate of inheritance. Elwes v. Mann, 3 East, 38. The act of March 4, 1843, appears to have been passed with a knowledge, that such was the law. For if the improvements, to which it refers, were not so connected with the freehold, that they became part of the estate, the person making them, or his assignee or legal representative, would have been entitled to the benefit of them by removing them without any statute provision.
The legislative department of the government may by law determine, that a tenant for life shall have the right to make permanent improvements upon the estate, and that he or those claiming under him shall be entitled to receive compensation for the value of them to be ascertained in such mode, as it may judge best. In many conceivable cases such statute provisions may be alike desirable for the promotion of the best interests of the parties entitled to the estate and for the public welfare. Courts of equity of general jurisdiction have been so sensible of this, that they have at times interposed to aid or permit such improvements to be made by a tenant for life, or to make compensation for them. In the case of Hibbert v. Cook, 1 Sim. & Stu. 552, the vice chancellor ordered compensation to be made to a widow, who was a devisee for life, out of her former husband’s personal estate for expenses incurred by her in finishing a new mansion house on the devised estate, which house the testator had nearly completed before his death. But he refused to make any compensation for repairs, which she had made upon it in consequence of an injury by the dry rot. While the lord chancellor would [529]*529not, in the case of Nairn v. Majoribanks, 3 Russ. 582, authorize a new roof to be put upon a mansion house by a tenant for life at the expense of the testator’s estate, oven if it should appear to be for the benefit of all parties interested in the estate. In the case of Cogswell v. Cogswell, 2 Edw. 231, it appeared, that city lots with buildings upon them had been devised for life. That ten feet were taken from the fronts of the lots after the death of the testator to widen the street, by which the buildings upon the lots were destroyed. The Court directed the executors to appropriate a sum out of the residuary personal estate to rebuild upon them, reserving an interest of six per cent, upon the cost, with a reasonable sum for depreciation and repair, to be paid out of the rents during the life estate.
While the exercise of the legislative power is admitted to be both constitutional and expedient, to determine what shall be the respective rights and duties of tenants for life, and of reversioners in relation to improvements made during the continuance of the estate for life, it will not follow, that their rights to such improvements can be altered or changed, after they have been fixed and established by the laws existing at the time, when the life estate falls. The right of the legislative department to authorize a person holding lands by possession and improvement, to claim and obtain compensation for his improvements has been admitted. But if he should voluntarily abandon his improvements with the land, and they should by the existing laws, as they would now do, become the property of the owner of the estate, would any intelligent person claim for the legislature the constitutional power to deprive the owner of any portion of his estate except for public use ? Although there is a similarity between the grantee of a tenant for life and one holding by possession and improvement in this, that the tenant in each case is found in possession of the premises; yet there is an essential distinction between them at common law in this, that by the determination of the estate for life an event has occurred, by which the rights of a grantee of a tenant for [530]*530life to improvements have been determined, while no event attended by such consequences has occurred to affect the rights of one holding by possession and improvement. So an act of the legislature might constitutionally determine, what should be the rights of married women to dower in the estates of their husbands; and might deprive them of their right to claim it on the decease of their husbands. But should a widow, by the existing laws, become entitled to dower in the estate of a deceased husband, no one would insist, that she could be'deprived of that dower by an act of the legislature.
In this case, by the laws of the State, as they were at the time of the death of the tenant for, life, on April 4, 1841, the permanent improvements made by the person in possession of the estate for life became absolutely incorporated into, and a part of, the reversionary estate. Those improvements had continued to be an integral part of that estate for twenty-three months before the passage of the act of March 4, 1843. If that act must be construed to be applicable to such a case, and to authorize one, who had no title to the improvements for nearly two years before its passage, to obtain the value of them from the grantee of those, who during that time had by the existing laws a perfect title to them, it is manifest, that so much of the act as attempts to do this, must be in direct conflict with those provisions of the Constitution of this State, which secure to each citizen the right to possess and preserve his private property, unless it be required for the public use.
The tenant is to he defaulted.