AI/IíSN, P.
• The plaintiffs in error brought ejectment to recover a lot of land in this city, claiming to be the owners in fee. It does not appear by the printed record that they filed with the declaration a statement of the profits and other damages they meant to claim; or that the deféndant had filed with his plea, or at subsequent time before the trial, with the leave of the court, a statement of his claim for improvements. It is said in argument that such statements on either side were filed within two *or three days before a jury was sworn to try the issue, and that this is shown.by some memorandum endorsed on or filed with the original papers. On the 24th of November 1856, the jury sworn to try the issue returned a verdiet that the plaintiffs had a right to the possession, and that their estate was in fee simple; and they allowed the defendant for his improvements, over and above the damages to which the plaintiffs were entitled, the sum of $1,250. Por reasons appearing to the court judgment on this verdict was suspended. On the 29th of November 1856, during the same term and before any judgment was entered, but after the jury had been discharged and had dispersed, the plaintiffs moved the court, by an entry on record, to require that the value of their estate in the premises in the declaration demanded, without the improvements, be ascertained by impanelling a jury for the purpose. The motion was held under advisement until the following term, when the court overruled the motion, and entered up judgment upon the verdict according to law. The plaintiffs excepted to the decision overruling their motion, and have brought the case to this court by a writ of supersedeas.
By the R. C. of 1819, ch. 118, § 1, it was provided that the demandant in a writ of right, if he recover his seisin, may also recover. damages, to be assessed by the recognitors of assize, for the tenants withholding possession of the tenement demanded. By an act passed April 6th, 1838, Sess. acts p. 75 provision was made for the assessment of damages for mesne profits; the act providing that in the trial of all actions of ejectment, if the jury find a verdict in favor of the plaintiff, it shall be lawful for them to assess damages for the mesne profits, &c. ; provided that such damages shall not be assessed unless the plaintiff file with his [139]*139declaration a statement showing the amount of profits and other damages which he means to claim. These provisions
were for the benefit of *the demand-ant or plaintiff, and the jury that tried the issue, also assessed the damages. The enquiry was simple and not complicated with any question as to the value of improvements, and could be made by the recognitors of the assize or the jury sworn to try the issue upon the question of possession or title in ejectment, without materially interfering with the trial of the main question in issue.
By an act concerning delinquent and forfeited lands passed March 10th, 1832, Sess. acts p. 61, 'Í 7, provision was made that whenever any judgment or decree should be entered for the recovery of land, or the possession thereof, situated in any of the counties lying west of the Alleghany mountains, it should be lawful for the tenant to produce evidence, tending to show that he or those under whom he claimed, have bona fide settled and seated such lands &c., and have made valuable and permanent improvements thereon, over and above the value of the use and occupation thereof; and if satisfied of the probable truth of such allegations, the court was impowered to suspend the execution of the judgment or decree until the same could be enquired of by a jury which should be empanelled and sworn well and truly to ascertain the reasonable additional value given to such recovered land by the permanent improvements over and above a reasonable allowance for the use and occupation of the land; the amount ascertained to constitute a lien on the land. But the act was to be construed as not to authorize a valuation of improvements so as to reduce the value of the plaintiff’s land below the actual value of the same without improvements at the time of eviction.
This law, it will be observed, looked at the assessment of the allowance to the defendant for improvements as always to be made after judgment or decree by a jury specially impanelled and sworn to such enquiry. *This was the condition of the law when the " attention of the revisors was directed to this subject. They reported two bills embracing the various provisions contained in the previous laws, with some substantial alterations, and with modifications as to the manner of carrying the law into effect.
In the Code ch. 135, § 30, is found the provision for the plaintiff. If the plaintiff file with his declaration a statement of the profits and other damages he means to demand, and the jury find in his favour, they shall at the same time, unless the court otherwise order, assess the damages for mesne profits, and also damages, for any destruction or waste of the buildings or other property. So far the law is in accordance with the previous laws. This enquiry, being for the benefit of the plaintiff alone, is to be made by the jury which tries the issue, unless the court should otherwise order. The act is silent as to the mode of assessment when the courts did otherwise order, but as the law gave the plaintiff a right to such an assessment, it would be competent for the court, under its general powers to empanel juries to ascertain facts, and from analogy to other portions of the, act, to direct another jury to be empanelled to make such assessment of the damages. The 32nd section takes up the case of the defendant, and provides, that if he intends to claim allowance for improvements he shall file with his plea, or at a subsequent time before the trial, (if for good cause allowed by the court), a statement of his claim therefor, in case judgment be rendered for the plaintiff. The 33rd section declares that the damages of the plaintiff and the allowance to the defendant for improvements shall be estimated and the balance ascertained and judgment therefor rendered as prescribed in the 136th chapter. That chapter as will be seen, as reported by the revisors, was copied in a great measure from the act of March 10th, 1832. The 34th *section of chapter 135, provides that on motion of either party, the court may order the assessment of, damages and allowance to be postponed until after the verdict on the title is recorded.
We thus perceive that when the. law was so modified, as to admit the plaintiff, in addition to a claim for damages for mesne profits, to claim also damages for waste and destruction to buildings and the other property, although in general, the assessment was to be made by the jury that tried the issue, the court might order otherwise : a power the court might, and on proper suggestion, would exercise, whenever from the complexity of the questions concerning the title, justice to the parties would be promoted by confining the jury to the main issue, and that alone. But when the defendant filed a statement of his claim to allowance for improvements, the enquiry becomes still more complicated; the amount of damages for mesne profits, for destruction and waste of buildings and other property, the value of improvements, the bona fides of the possession when they were made, their permanence, &c., were all subjects of enquiry, presenting generally questions more numerous and perplexing than those referring to the title to the premises. The court therefore on motion of either party, may order this assessment to be postponed until after verdict on the title is recorded.
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AI/IíSN, P.
• The plaintiffs in error brought ejectment to recover a lot of land in this city, claiming to be the owners in fee. It does not appear by the printed record that they filed with the declaration a statement of the profits and other damages they meant to claim; or that the deféndant had filed with his plea, or at subsequent time before the trial, with the leave of the court, a statement of his claim for improvements. It is said in argument that such statements on either side were filed within two *or three days before a jury was sworn to try the issue, and that this is shown.by some memorandum endorsed on or filed with the original papers. On the 24th of November 1856, the jury sworn to try the issue returned a verdiet that the plaintiffs had a right to the possession, and that their estate was in fee simple; and they allowed the defendant for his improvements, over and above the damages to which the plaintiffs were entitled, the sum of $1,250. Por reasons appearing to the court judgment on this verdict was suspended. On the 29th of November 1856, during the same term and before any judgment was entered, but after the jury had been discharged and had dispersed, the plaintiffs moved the court, by an entry on record, to require that the value of their estate in the premises in the declaration demanded, without the improvements, be ascertained by impanelling a jury for the purpose. The motion was held under advisement until the following term, when the court overruled the motion, and entered up judgment upon the verdict according to law. The plaintiffs excepted to the decision overruling their motion, and have brought the case to this court by a writ of supersedeas.
By the R. C. of 1819, ch. 118, § 1, it was provided that the demandant in a writ of right, if he recover his seisin, may also recover. damages, to be assessed by the recognitors of assize, for the tenants withholding possession of the tenement demanded. By an act passed April 6th, 1838, Sess. acts p. 75 provision was made for the assessment of damages for mesne profits; the act providing that in the trial of all actions of ejectment, if the jury find a verdict in favor of the plaintiff, it shall be lawful for them to assess damages for the mesne profits, &c. ; provided that such damages shall not be assessed unless the plaintiff file with his [139]*139declaration a statement showing the amount of profits and other damages which he means to claim. These provisions
were for the benefit of *the demand-ant or plaintiff, and the jury that tried the issue, also assessed the damages. The enquiry was simple and not complicated with any question as to the value of improvements, and could be made by the recognitors of the assize or the jury sworn to try the issue upon the question of possession or title in ejectment, without materially interfering with the trial of the main question in issue.
By an act concerning delinquent and forfeited lands passed March 10th, 1832, Sess. acts p. 61, 'Í 7, provision was made that whenever any judgment or decree should be entered for the recovery of land, or the possession thereof, situated in any of the counties lying west of the Alleghany mountains, it should be lawful for the tenant to produce evidence, tending to show that he or those under whom he claimed, have bona fide settled and seated such lands &c., and have made valuable and permanent improvements thereon, over and above the value of the use and occupation thereof; and if satisfied of the probable truth of such allegations, the court was impowered to suspend the execution of the judgment or decree until the same could be enquired of by a jury which should be empanelled and sworn well and truly to ascertain the reasonable additional value given to such recovered land by the permanent improvements over and above a reasonable allowance for the use and occupation of the land; the amount ascertained to constitute a lien on the land. But the act was to be construed as not to authorize a valuation of improvements so as to reduce the value of the plaintiff’s land below the actual value of the same without improvements at the time of eviction.
This law, it will be observed, looked at the assessment of the allowance to the defendant for improvements as always to be made after judgment or decree by a jury specially impanelled and sworn to such enquiry. *This was the condition of the law when the " attention of the revisors was directed to this subject. They reported two bills embracing the various provisions contained in the previous laws, with some substantial alterations, and with modifications as to the manner of carrying the law into effect.
In the Code ch. 135, § 30, is found the provision for the plaintiff. If the plaintiff file with his declaration a statement of the profits and other damages he means to demand, and the jury find in his favour, they shall at the same time, unless the court otherwise order, assess the damages for mesne profits, and also damages, for any destruction or waste of the buildings or other property. So far the law is in accordance with the previous laws. This enquiry, being for the benefit of the plaintiff alone, is to be made by the jury which tries the issue, unless the court should otherwise order. The act is silent as to the mode of assessment when the courts did otherwise order, but as the law gave the plaintiff a right to such an assessment, it would be competent for the court, under its general powers to empanel juries to ascertain facts, and from analogy to other portions of the, act, to direct another jury to be empanelled to make such assessment of the damages. The 32nd section takes up the case of the defendant, and provides, that if he intends to claim allowance for improvements he shall file with his plea, or at a subsequent time before the trial, (if for good cause allowed by the court), a statement of his claim therefor, in case judgment be rendered for the plaintiff. The 33rd section declares that the damages of the plaintiff and the allowance to the defendant for improvements shall be estimated and the balance ascertained and judgment therefor rendered as prescribed in the 136th chapter. That chapter as will be seen, as reported by the revisors, was copied in a great measure from the act of March 10th, 1832. The 34th *section of chapter 135, provides that on motion of either party, the court may order the assessment of, damages and allowance to be postponed until after the verdict on the title is recorded.
We thus perceive that when the. law was so modified, as to admit the plaintiff, in addition to a claim for damages for mesne profits, to claim also damages for waste and destruction to buildings and the other property, although in general, the assessment was to be made by the jury that tried the issue, the court might order otherwise : a power the court might, and on proper suggestion, would exercise, whenever from the complexity of the questions concerning the title, justice to the parties would be promoted by confining the jury to the main issue, and that alone. But when the defendant filed a statement of his claim to allowance for improvements, the enquiry becomes still more complicated; the amount of damages for mesne profits, for destruction and waste of buildings and other property, the value of improvements, the bona fides of the possession when they were made, their permanence, &c., were all subjects of enquiry, presenting generally questions more numerous and perplexing than those referring to the title to the premises. The court therefore on motion of either party, may order this assessment to be postponed until after verdict on the title is recorded. Until that question was settled it would be uncertain whether there would be any necessity for such assessment. If the plaintiff failed, the time spent and costs incurred, in these collateral enquiries would have been spent and incurred for no beneficial purpose; and the attention of the jury would have been diverted from the main issue, and their verdict from that cause be less satisfactory.
The allowance for improvements was fully provided for by the 136th chapter of Code, p. 613, which embodied the provisions of the act of March 10, 1832, confined [140]*140*to the counties west of the Alleghany originally, but extended to the whole State by the Code. When damages were to be assessed and improvements estimated before a judgment as provided for in ch. 135, it was to be done as prescribed by ch. 135. The proceedings under this chapter as in the act of March 10, 1832, followed the judgment or decree for the recovery of the land. The defendant against whom the judgment or decree was rendered, might at any time before the execution thereof, present his petition, stating that while he, or those under whom he claimed, were holding the premises under a title believed by him or them to be good, valuable improvements were made thereon, and praying that he be allowed for the same over and above the value of the use and occupation of such land. The court if satisfied of the probable truth of the allegations may suspend the execution of the judgment, and empanel a jury to assess the damages of the plaintiff and the allowance for improvements. The second section directs that the jury, in assessing such damages under this chapter or chapter 135, shall estimate against the defendant the clear annual value of the premises, exclusive of the use by the tenant of the‘improvements thereon made by himself or those he claims under. The 4th section provides that if the jury shall be satisfied that the tenant, or those he claims under, made, on the premises, at a time when there was reason to’ believe the title good under which possession of the premises was held, valuable and permanent improvements, they shall estimate in his favor the value of such improvements, &c. The 5th section contains some further directions; and the 6th provides that after offsetting the damages and allowance, the jury shall find a verdict for the balance for plaintiff or defendant, as the case may be, and judgment or decree shall be entered therefor according to the verdict. And the 7th section makes the balance due to *the defendant a lien on the land until paid. The 8th and 9th sections contain provisions for the case of tenant for life or refer to a suit brought by a mortgagee.
This completed the scheme of the revisors as reported to the legislature in chapters 135-6. Revisors report page 697 to 700. By the scheme the jury sworn to try the issue, where statements were filed with the declaration or plea, might, unless the court ordered, or either party so moved, make all the inquiries required; or they might, if the court should so order, be made by the same jury after the verdict on the title was recorded, or, as I construe the act, by a new jury to be empanelled. And where the application was made on petition after judgment, the assessment was necessarily to be made by a new jury. But in either case the assessment of damages and for the allowance for improvements must be made by the same jury. The enquiry is blended; the value of the premises estimated against the defendant, is to be exclusive of his use of improvements made by him; a balance is to be struck and a verdict for such balance-found.
The legislature when deliberating on this subject, could not fail to see, that however correct in principle it might be, to allow the occupying tenant for improvements, made at a time he had reason to believe his-title was good, and before notice of the.plaintiff’s claim, yet in carrying out the-principle into practice cases of great hardship to the true owner would arise, unless, some further protection was provided for' him. The balance found by the verdict, might be more than the owner could pay down; yet a judgment passed against him for it, and it constituted a lien on his land. In the unsettled portions of the State, to-which the law was at first confined, unimproved lands were of no great value; and as sympathy might be felt for the occupying claimant and prejudice entertained against a non-resident proprietor, there *was some risk that cases might arise, in which by the finding of the
jury, the owner of the fee would be improved out' of his estate; a lien fixed on it for more than it was worth. To guard against such contingencies, the legislature engrafted upon the bills reported by the revisors, the sections under which this controversy has, arisen. The 10th section enacts that “when the defendant shall claim allowance for improvements as before provided, the plaintiff may, by an entry on record, require that the value of his estate in the premises, without the improvements, shall be ascertained. By the 11th section, the value of the premises shall be estimated as it would have been at the time of the enquiry, if no such improvements had been made on the premises by the tenant or any person under whom he claims, and shall be ascertained in the manner, therein before provided, for estimating the value of improvements ; and by the 12th section, the plaintiff in such cases, if judgment is rendered for him, may at any time during the same term, or before judgment or decree is rendered on the assessment of the value of the improvements, enter on the record, his election, to relinquish his estate in the premises to the defendant, at the value so ascertained, &c. The remaining sections of the chapter provide for that contingency. The word 1 ‘ when’ ’ used in the beginningof the 10th section, “when the defendant shall claim,” was not intended to prescribe the period at which the plaintiff by entry on record, was to require that the value of his estate in the premises should be ascertained. The acts could not be contemporaneous. And when a petition was filed, as provided for in the 136th chapter, § 1, the plaintiff might not have any notice of it; the petition could be filed at any time before the execution of the judgment or decree. “When,” in this as' in other instances in the Code, is used in the sense of “if,” “in case.” The frequent use of this word in its relative sense was the subject of comment *in Pulliam v. Aler, 15 Gratt. 54. The value of his estate is to be [141]*141ascertained in the manner therein before -provided for estimating the value of the improvements; that is by a jury; that being the way or method provided for making all the assessments and estimates referred to in the two chapters. But there is nothing to show that the value was to be ascertained by the same jury. I incline to think it was not so intended, or else it would have been expressed. This provision, as has been shown, was a new one, forming no part of the scheme reported by the re visors, and not found in the former acts of assembly ; and there was good reason why it should not be blended with the other enquiries. This enquiry was of a different -character, and the necessity for it would depend on the result of the previous investigation. Until it - was ascertained, that there would be a balance in favor of the •defendant for improvements, it would be unnecessary to enter into the enquiry as to the value of the land. The jury if confined to the assessment of damages for mesne profits and waste, and to the allowance for improvements, had many perplexing points to settle; such as the bona fides of the tenant in making the improvements, the nature of the improvements whether permanent or temporary, the amount of rents or profits, the damages for waste and destruction. What reason of convenience would there be in perplexing the jury with testimony touching a matter foreign to all the other questions? A matter which if the jury made no allowance for the improvements, they would not be required to consider. It is for the plaintiff to determine whether he will require the valuation, in order to a relinquishment of his estate; and justice would seem to demand that he should know whether any charge would be fixed on his estate, and the amount of it, before incurring the trouble and expense of proving the value of his interest, and consuming *the time of the court and jury in- what might turn out to be a fruitless enquiry. Such enquiry too if made necessarily before the same jury, might tend to his prejudice upon the other subjects to be investigated. It might be inferred, that he was conscious the improvements were made, when the defendant or those under whom he claims, believed they held under a good title, notwithstanding any efforts of the plaintiff to make the contrary appear. Or it might be ascribed to a more intimate knowledge of the value of the improvements ; or the conviction that his claim to damages for waste and destruction was unfounded. Considerations of this kind may exercise an influence over the minds of jurors to an extent of which they themselves are unconscious, and give a coloring to the evidence which, but for such impressions, it would not bear. The plaintiff must enter on the record his election to relinquish his estate,. during the same term, if judgment is entered for him, or before judgment is rendered on the assessment of the value of the improvements.
The act I think contemplated all the enquiries, as well those relating to damages and allowance for improvements, as those to ascertain the value of the plaintiffs estate in the land, if no such improvement had been made, to be directed to the same period of time. The value of the plaintiffs’ estate shall be estimated as it would have been at the time of the enquiry is the language of the act; which I think relates to the enquiry into all the subjects contemplated by the act, as well as this particular one to ascertain the value of the land. All must be made during the same term, in some rare case, owing to a disagreement of the jury or some unforeseen contingency, as in the present case, where the court held the case over for advisement, the enquiry may be postponed; but in such case it would be attended with no difficulty in ascertaining the value as it was at the time when the ^estimate for the allowance for improvements was made. The spirit of the act would be carried out; and as it is remedial, giving a remedy for what would otherwise be a crying enormity, the disherison of men, by compelling them to pay for improvements they did not make, and perhaps would not have desired, it should receive a fair construction so as to effectuate the intention of the legislature, and do justice to both parties. I think the motion was in time and that the court should have sustained it, and erred in overruling it; and therefore that the judgment should be reversed and the cause remanded; and unless the plaintiffs, when the case is again docketed, shall waive their right, that a jury should be empanelled and sworn to asertain, what was the value of the estate of the plaintiffs in the declaration demanded, without the improvements, as of the 24th day of November, 1856, the time when the former verdict was found; and upon the coming in of such verdict, if the plaintiffs in person or by their attorney in the cause, enter on the record, their election to relinquish their estate in the premises to the defendant, at the value so ascertained, the court to make all proper entries and render judgment according to law. But if the plaintiffs shall waive their right to require that the value of their estate in the premises, without the improvements, shall be ascertained, the court is to proceed and enter judgment on the verdict so found on the 24th day of November, 1856. Which is ordered to be certified.
The other judges concurred in the opinion of Allen, P.
Judgment reversed.