Woods, Judge:
The appellant, for grounds of error, assigns, the following : (1) In directing its commissioner to ascertain and report any other sums paid by the appellee than the amounts of her obligations to commissioners Mathews and Skeen; (2) in directing the annual rental value of the land to be estimated as of the time it went into the possession of Isaac Moore; (3) in directing an account to betaken of the improvements; (4) in overruling appellant’s exception to the commissioner’s report; (5) in directing the sale of the land “in the bill and proceedings mentioned,” when there is nothing contained therein sufficient to warrant the commissioners to sell any particular tract of land; (6) in-not directing a conveyance of the legal title to the appellant before decreeing a sale; (7) in giving so short a time in which to redeem the land, and between the payments.
There is nothing in the first error alleged. The action of the Circuit Court in regard thereto is exactly in accordance with the directions of this Court in Moore v. Ligon, 22 W. Va. 302, wherein we say: “Of course, if it becomes necessary for the court to enforce the payment of the portion of the purchase-money paid by the plaintiff, either to the court or to the female defendant, treating it as unpaid purchase- . money, she should be allowed, as against it, the rents and in’ofits of this land, if any %oere received by the plaintiff, less the taxes on the land, if any, paid by him.” It appears, from the proof in this record that Moore paid to the commissioners of the court, from whom Mrs. Ligón purchased the land, not only her obligations,.amounting to $13,277.74, executed for part of the purchase-money of the land, but also her down payment of $722.26, making in all the full price of $14,000.00 which she agreed to pay for it; the payment whereof was secured by the vendor’s lien on the land, thus placing himself in the very condition, in which this court said he ■'would [152]*152be entitled to enforce the payment of these sums “ paid by him to the court.”
Neither did the court err in directing its commissioners to ascertain the rental value of the land in the condition it was at the time Moore obtained the possession thereof. This was the rule adopted in South Carolina in Thompson v. Bostick, 1 McMul. Eq. 75, and by the Court of Appeals of Virginia in Early v. Friend, 16 Gratt. 21; White v. Stuart, 76 Va. 556. This rule in the case at bar does justice to both parties. It does not make the compensation of Mrs. Ligón depend upon the accident, that Moore was a good or a bad farmer, a prudent, and careful man, or a wild, imprudent, or reckless one. It is just to Moore, who occupied and used the land instead of renting it out; and he should be held accountable only to the same extent, as if he had rented it out and received the rent.
Neither did the Circuit Court err in directing its commissioners to state an account of the improvements made upon the land by Moore after it came into his possession. This possession he acquired, and for five years quietly held and enjoyed, with the knowledge and consent of Mrs. Ligón, relying on her good faith to comply with the terms of her agreement. During all this time she quietly stood by, knowing that Moore, in compliance with the terms of said agreement, was paying her debt to the court, amounting to more than $16,000.00, paying the taxes on the land, amounting to nearly $150.00 a year, repairing buildings, fencing and beautifying the dwelling-house and its surroundings, planting orchards, and making many other permanent improvements which greatly enhanced the value of the farm. The increase in the value of the land added by these improvements, in the opinions of the witnesses, varies from $750.00 to $2,000.00, and the commissioner was fully warranted in ascertaining their value to be $1,000.00, and he according^ so reported. It is true that the plaintiff makes no claim for. these improvements, but as he was not permitted to enforce the specific execution of his agreement against Mrs. Ligón, and only permitted to charge the land with the payment of the purchase-money which he had paid for her to the court, it became necessary to state an account between them to ascertain the amount [153]*153be was equitably entitled to demand. He had enjoyed the use of the land. He should therefore account to her for the rental value of the land in the condition in which it was when he obtained possession thereof. She should repay the taxes, if any, which he had paid on the land while he occupied and enjoyed it. She should repay to him the purchase-money he had paid for her, with its interest, and he should surrender to her the land ; but, in doing so, he surrendered to her his permanent improvements made thereon; and she not only received from him her land of the value it possessed when he received it, but that value enhanced $1,000.00 by his improvements! To permit her to retain this unfair advantage would be inequitable and unjust, and in the cqse in judgment, would be to reward her perfidy. Moore’s claim for the value of these improvements stands upon the highest grounds of justice and equity; and as in this case he could not otherwise recover them, the court did not err in abating the value thereof from the rents and profits of the land. While it is the better mode to claim such improvements in the pleadings in the cause, yet it is not absolutely necessary to do so ; and if the court directs its commissioner to ascertain their value, either party may appear before him and prove the same. In this case both parties did so, and because the commissioners reported the value of the imxjrovements, the defendant excepted to the report, which exception the court overruled. This point was expressly decided by this Court in Ogle v. Adams, 12 W. Va. 213, Syllabi, 6.
The fourth ground of error assigned was overruling her exceptions to the commissioner’s report. The first exception is the same as the first ground of error assigned, and has been already considered. The same is true of her fifth exception ; the same having been already considered under her third assignment of error, and in regard to it nothing further need be added. There was nothing in her sixth exception, because the compensation which may be claimed for permanent improvements is not the actual value or the cost of any or all of them, but only the enhanced value of the land, resulting from such improvements, which is generally much less than the cost of making them, or than their several [154]*154value when made. It was therefore unnecessary for the commissioner to report an “itemized statement” of such im_ provements, and he did not err in reporting their value in a gross sum. Her eleventh exception was untenable in every view of the case, as it wholly failed to specify in what respect the commissioner had charged erroneous fees. It is well settled that the alleged error of the commissioner complained of must be particularly designated, and, unless the exception does so, the court will disregard it.
Did the commissioner err in fixing the date for the commencement of the rents on the first of October instead of the second of May, 1871? It is insisted, on behalf of the appellant, that inasmuch as the agreement between her and Moore transferred to him all the rents of the land accruing, and which had accrued, to her, from the second of May, he should account for the rents from that day until the first of October, at which time he obtained the full possession of the land, whether he in fact received any rents from her tenants or not.
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Woods, Judge:
The appellant, for grounds of error, assigns, the following : (1) In directing its commissioner to ascertain and report any other sums paid by the appellee than the amounts of her obligations to commissioners Mathews and Skeen; (2) in directing the annual rental value of the land to be estimated as of the time it went into the possession of Isaac Moore; (3) in directing an account to betaken of the improvements; (4) in overruling appellant’s exception to the commissioner’s report; (5) in directing the sale of the land “in the bill and proceedings mentioned,” when there is nothing contained therein sufficient to warrant the commissioners to sell any particular tract of land; (6) in-not directing a conveyance of the legal title to the appellant before decreeing a sale; (7) in giving so short a time in which to redeem the land, and between the payments.
There is nothing in the first error alleged. The action of the Circuit Court in regard thereto is exactly in accordance with the directions of this Court in Moore v. Ligon, 22 W. Va. 302, wherein we say: “Of course, if it becomes necessary for the court to enforce the payment of the portion of the purchase-money paid by the plaintiff, either to the court or to the female defendant, treating it as unpaid purchase- . money, she should be allowed, as against it, the rents and in’ofits of this land, if any %oere received by the plaintiff, less the taxes on the land, if any, paid by him.” It appears, from the proof in this record that Moore paid to the commissioners of the court, from whom Mrs. Ligón purchased the land, not only her obligations,.amounting to $13,277.74, executed for part of the purchase-money of the land, but also her down payment of $722.26, making in all the full price of $14,000.00 which she agreed to pay for it; the payment whereof was secured by the vendor’s lien on the land, thus placing himself in the very condition, in which this court said he ■'would [152]*152be entitled to enforce the payment of these sums “ paid by him to the court.”
Neither did the court err in directing its commissioners to ascertain the rental value of the land in the condition it was at the time Moore obtained the possession thereof. This was the rule adopted in South Carolina in Thompson v. Bostick, 1 McMul. Eq. 75, and by the Court of Appeals of Virginia in Early v. Friend, 16 Gratt. 21; White v. Stuart, 76 Va. 556. This rule in the case at bar does justice to both parties. It does not make the compensation of Mrs. Ligón depend upon the accident, that Moore was a good or a bad farmer, a prudent, and careful man, or a wild, imprudent, or reckless one. It is just to Moore, who occupied and used the land instead of renting it out; and he should be held accountable only to the same extent, as if he had rented it out and received the rent.
Neither did the Circuit Court err in directing its commissioners to state an account of the improvements made upon the land by Moore after it came into his possession. This possession he acquired, and for five years quietly held and enjoyed, with the knowledge and consent of Mrs. Ligón, relying on her good faith to comply with the terms of her agreement. During all this time she quietly stood by, knowing that Moore, in compliance with the terms of said agreement, was paying her debt to the court, amounting to more than $16,000.00, paying the taxes on the land, amounting to nearly $150.00 a year, repairing buildings, fencing and beautifying the dwelling-house and its surroundings, planting orchards, and making many other permanent improvements which greatly enhanced the value of the farm. The increase in the value of the land added by these improvements, in the opinions of the witnesses, varies from $750.00 to $2,000.00, and the commissioner was fully warranted in ascertaining their value to be $1,000.00, and he according^ so reported. It is true that the plaintiff makes no claim for. these improvements, but as he was not permitted to enforce the specific execution of his agreement against Mrs. Ligón, and only permitted to charge the land with the payment of the purchase-money which he had paid for her to the court, it became necessary to state an account between them to ascertain the amount [153]*153be was equitably entitled to demand. He had enjoyed the use of the land. He should therefore account to her for the rental value of the land in the condition in which it was when he obtained possession thereof. She should repay the taxes, if any, which he had paid on the land while he occupied and enjoyed it. She should repay to him the purchase-money he had paid for her, with its interest, and he should surrender to her the land ; but, in doing so, he surrendered to her his permanent improvements made thereon; and she not only received from him her land of the value it possessed when he received it, but that value enhanced $1,000.00 by his improvements! To permit her to retain this unfair advantage would be inequitable and unjust, and in the cqse in judgment, would be to reward her perfidy. Moore’s claim for the value of these improvements stands upon the highest grounds of justice and equity; and as in this case he could not otherwise recover them, the court did not err in abating the value thereof from the rents and profits of the land. While it is the better mode to claim such improvements in the pleadings in the cause, yet it is not absolutely necessary to do so ; and if the court directs its commissioner to ascertain their value, either party may appear before him and prove the same. In this case both parties did so, and because the commissioners reported the value of the imxjrovements, the defendant excepted to the report, which exception the court overruled. This point was expressly decided by this Court in Ogle v. Adams, 12 W. Va. 213, Syllabi, 6.
The fourth ground of error assigned was overruling her exceptions to the commissioner’s report. The first exception is the same as the first ground of error assigned, and has been already considered. The same is true of her fifth exception ; the same having been already considered under her third assignment of error, and in regard to it nothing further need be added. There was nothing in her sixth exception, because the compensation which may be claimed for permanent improvements is not the actual value or the cost of any or all of them, but only the enhanced value of the land, resulting from such improvements, which is generally much less than the cost of making them, or than their several [154]*154value when made. It was therefore unnecessary for the commissioner to report an “itemized statement” of such im_ provements, and he did not err in reporting their value in a gross sum. Her eleventh exception was untenable in every view of the case, as it wholly failed to specify in what respect the commissioner had charged erroneous fees. It is well settled that the alleged error of the commissioner complained of must be particularly designated, and, unless the exception does so, the court will disregard it.
Did the commissioner err in fixing the date for the commencement of the rents on the first of October instead of the second of May, 1871? It is insisted, on behalf of the appellant, that inasmuch as the agreement between her and Moore transferred to him all the rents of the land accruing, and which had accrued, to her, from the second of May, he should account for the rents from that day until the first of October, at which time he obtained the full possession of the land, whether he in fact received any rents from her tenants or not. From what appears in the record, the only tenant from whom rents could accrue was 8. L. Gibson, who had rented the most valuable part of the farm from John Warrick three or four years before Mrs. Ligón purchased the same at a sale thereof for the payment of his debts; and Gibson had so rented part of the land at the annual rent of $400 in order to reimburse himself for a debt against Warrick for which Gibson, as sheriff, had made himself liable, and been compelled to pay. There is no proof whatever that Moore received any rents from any tenant on the land, or that by the exercise of due diligence, he could have received any such rents. If Mrs. Ligón desired to charge him with such rents, the burden was upon her to show the amount thereof, and from whom the same were due, and, failing to do so, she is not entitled to charge him with such rents; nor is there any proof to show that he had any beneficial use of said land until the first October, 1877, as ascertained by the commissioner.
Neither did the commissioner err in his view of what constitutes rents and profits, nor in failing to state an account of the 1,1 profits” realized by Moore from the land. If Moore had occupied and used the lands for Mrs. Ligón as her trustee or agent, he might properly be charged with all the rents, issues, [155]*155and profits, derived by him from the use of the trust property. But he did not enter into, hold, or use the lands as such agent or fiduciary. There was no relation of trust or confidence existing between them. He was not, like such fiduciary, to manage the land to the best advantage, and make all the profit he could for Mrs. Ligón, and to keep and render to her a full and fair account of his transactions in regard to this land ; nor was she entitled to share in the profits actually made by the application to the land of his labor, skill, and property. She was entitled to the fair yearly value of the property in the condition in which it was at the time it came into his possession, and no more. White v. Stuart, 76 Va. 566. This rental value does not consist in hypothetical estimates of speculative profits which might have been, or which may be, realized from the use of the land when stocked, farmed, and managed with the greatest industry and skill. Early v. Friend, 16 Grat. 21; Co. Litt. 172; 1 Story Eq. Jur. 446. Such a measure of value no prudent man could afford to pay; for in most cases it would greatlj-exceed what the owner could ordinarily realize from the use of his own land. The true annual rental value of land is the price which a prudent, industrious farmer could afford to pay for its use, after taking into co.nsideration the amount of and the probable market value of his crops, and the probable injuries thereto resulting from the ordinary changes of season and climate. A still more satisfactory reason why the commissioner failed to report an account of the profits made by Moore in addition to the rents, may be found in the fact that there was no evidence of any such profits before the commissioner; and the same is equally true in relation to her ninth exception, as there was no evidence, that Moore had injured the land while the same was in his possession. From what w.e have already said, it is clear, that the commissioner’s report was not stated upon an erroneous principle.
It is strongly insisted by the appellant’s counsel, that the commissioner fixed the annual rental value of the land at a grossly inadequate price, and far below the value proved. It is true, that a very wide discrepancy exists between the estimates as to the annual rental value of this land, [156]*156as given by the witnesses for the appellant and for the appellee, — those for the appellant fixing its rental value at sums ranging from $1,800.00 to $2,750.00, and those of Moore, from $700.00 to $850.00, and one at $1,500.00. Admitting the witnesses to be equally intelligent and credible, this discrepancy must necessarily result from the different modes of estimating the annual rental value of the land, and the different elements entering into their several calculations. It is not pretended, that $14,000.00 was not a full, fair price for the farm; nor that the amount of improved land exceeded 500 acres. The lowest estimate of the appellant’s witnesses was $1,800.00 per year, equal to 12 6-7 per cent., the highest at $2,750.00, equal to 19 3-7 per cent, per annum upon the price of the land. One witness for the appellant fixes the rental value at $2,160.00, equal to 15 3-7 per cent., another at $1,900.00, equal to 13 4-7 per cent., upon the price of the farm ; but these witnesses could name only two or three farms that they thought paid over six percent. upon their actual values. Upon a careful examination of the testimony of the witnesses of the appellant, it is quite apparent that the values given by them were not based upon knowledge of what the land had actually produced in any given year, but upon what they believed it was capable of producing. Estimating that the land was capable of grazing and feeding during the year from 80 to 100 head of three-year-old cattle, and that their keeping derived from the land would be worth from $1.50 to $2.00 per month, and that said cattle during the year would increase in weight 300 or 400 pounds; that such cattle could be bought for four, and sold the next year for five cents per pound, — they reached the conclusions, given in their several estimates, of the annual rental value of land. It is evident that this mode of valuation could not be sustained even against a fiduciary using trust-property; for such values are merely speculative, and are entitled to very little consideration. The commissioner properly regarded these estimates as based upon unsound premises, and adopted the valuation of $800.00 per year, be-iug very nearly the average value of the estimates of all Moore’s witnesses, and very nearly equal to the annual interest upon the price given for the land.
[157]*157This was purely a question of fact; and the commissioner to whom this inquiry was directed, amidst all this conflict of testimony, ascertained and reported the annual rental value of the land at $800.00, and the appellant, in the court below, excepted to this report on the ground, that this sum was grossly inadequate, and the court, after mature consideration, overruled the exception, and approved and confirmed this finding of the commissioner. Under these circumstances, the finding of the commissioner will be given great weight, and should be sustained, unless it plainly appears, that it is not warranted by any reasonable view of the evidence; and this rule must operate with still greater force in this Court, where the findings of the commissioner, as in this case, have been approved and sustained by the decree of the Circuit Court; and in such case, this Court can interfere only when the report and the decree are plainly against the evidence. Handy v. Scott, 26 W. Va. 713; Boyd v. Gunnison, 14 W. Va. 1; Graham v. Graham, 21 W. Va. 698.
There is nothing in the appellant’s fifth and sixth assignments of error. The land was sold and purchased by the appellant under the decrees and proceedings in the chancery cause of Woods’ Ex’r v. John W. Warrick and others, pending in the Circuit Court of Pocahontas county, and the record of said chancery suit is filed with, and made part of, the plaintiff’s bill in this cause, whereby the description of the several parcels of land purchased by the appellant, and decreed to be sold, fully and at large appear. From the allegations of the plaintiff’s bill, which are not denied, the legal title to these lands has been conveyed by the commissioner of the court in the cause of Woods’ Ex’r v. Warrick etc., to the plaintiff, Moore, and it is necessarily before and within the control of the court.
The period given for the redemption of the land, and the credits upon which the land is directed to be sold, are the usual time and credits allowed, and we find nothing in this record upon which any just claim for the peculiar indulgence can be forwarded.
We are therefore of opinion, that there is no error in the [158]*158decrees complained of, and the same are therefore affirmed, with costs, and $30.00 damages.
Affirmed.