Handy, J.,
delivered the opinion'of • the court.
This record presents three questions for consideration :
1st. Whether the evidence is sufficient, to identify the land sought to he recovered, with that embraced in the deed of Charles Nicaise to John Porter, upon which the plaintiffs’ title depends.
2d. Whether it was competent, under the state of facts shown by the evidence, for the defendants to set up an outstanding title [411]*411to the premises, in Martial and Joseph Nicaise, to defeat the recovery of the plaintiffs.
3d. Whether the verdict as to the amount given for mesne profits is not excessive and erroneous.
1. The title of the plaintiffs is founded on a deed executed by Charles Nicaise to John Porter, their father, bearing date in 1816, describing the land as contained within certain specified bounds, and “ leginning at the southeast corner of the land of Lieutenant Rapp ; from thence running north,” &c. The land is claimed in the declaration according to the description in this deed; and the first question for consideration is, whether the land sought to be recovered in this action is included within the description of the land specified in the deed. It was manifestly incumbent on the plaintiffs to establish this identity, and much testimony directed to the point was offered by both parties.
After a careful examination of the evidence set out in the record, we are satisfied that the land described in this deed cannot embrace the land in the possession of the defendants, and cannot be the same as that spoken of by the witnesses as “ the Porter tract” or the “ Porter claim.”
The foundation of the plaintiffs’ claim, as to identity of the land, is that the land conveyed by the deed to Porter lies immediately south of a tract called the Hyde tract, whose southern line was its northern boundary. That tract is shown to have belonged to Bos-worth, and afterwards to Williams and Hyde, and afterwards to Farvé, but never to Rapp. In order, therefore, to establish the locality claimed by the plaintiffs, and to bring their claim within the description contained in their deed, the starting-point of the boundary mentioned in their deed must have been the southeast corner of the Bosworth, Williams, or Hyde tract, and not of the Rapp tract. “ Tho southeast corner of the Rapp tract” is the starting-point specified in the deed ; and it is shown by the testimony, as it appears to be clear from the nature of the case, that it is absolutely necessary to the location of the land to ascertain and fix that starting-point ; for there is no other point or landmark stated in the deed by Avhich it can be located. Hence, if the land lying immediately north of the tract as here claimed was never known as the land of Rapp, it is impossible to maintain that a description [412]*412commencing at the southeast corner of the Rapp tract can embrace land lying immediately south of the line of what was called and known as the Hyde tract; and the description and designation of the land in the deed cannot support the claim set up against the land in controversy here.
But it is positively shown by the testimony of Westbrook, a witness for the plaintiff, and the only witness who undertakes to state the locality of the Rapp tract, that that tract lay south of the Ad-din tract. His testimony shows that the description of the land in the deed cannot be fulfilled by locating the land immediately south of the Hyde tract, and that from his knowledge of the Rapp land, the deed cannot embrace the land here in dispute.
The testimony relied on in support of the claim of the plaintiffs is, principally that of the witness Parvb, who testified that Charles Nicaise had told him that the land lying immediately south of the Hyde tract was the same land sold by him to Porter, and that witness had assisted in running the line between the Hyde tract and what he calls the Porter tract; and that the surveyor, who is since deceased, told him that that was the northern line of the Porter tract. This witness also stated that he knew one corner of the north line of the Porter tract, and saw a post there; that the Porter tract was bounded on the north by the Hyde tract. But the witness also stated that he did not know where the land lay as described in the deed ; that he never knew, either of his own knowledge or by report, where the southeast corner of Rapp’s tract is, or where that tract was situated; that he did not know where the metes and bounds of the lands as described in the deed are, and could not tell where the land is by the description in the deed.
Considering the purport of this testimony, and especially with reference to the evidence above stated in relation to the locality of the land, it cannot be properly regarded as testimony to establish the boundary of the land conveyed by the deed. It was pertinent to the question of what was known as the ‘■‘■Porter tract," and what was its northern boundary, and whether Nicaise had not in some manner other than by the deed, sold that tract to Porter.
If the landmarks designated in the deed had been destroyed, or no particular landmarks or monuments had been mentioned in it, it might have been competent to show the boundaries of the tract by [413]*413proving declarations of persons, presumed from their situation to have a knowledge of it. But where the boundary is designated, and capable of being readily ascertained by measurement, it is not competent to show, in a proceeding like this, that it is a mistake, and to show by hearsay what was intended to be conveyed in opposition to the definite description in the deed. For that would be to prove by parol a conveyance of a different tract of land from that mentioned in the deed.
The question was, whether the land conveyed by the deed, and as therein described, lay immediately south of the Hyde tract ? If it did, as claimed by the plaintiffs, there was no difficulty in establishing the fact, and no necessity for resorting to hearsay testimony, as is fully shown by the statements of the rvitness under consideration. If it did not, it was not embraced in the deed, and the plaintiffs’ claim was without legal foundation. It was immaterial to the question in issue and to the title claimed by the plaintiffs, whether Nicaise had sold the land south of the Hyde tract to Porter, or whether the northern boundary of the tract so sold was the southern boundary of the Hyde tract; for the plaintiffs founded their claim upon the deed; and if the land was not embraced in the boundaries therein stated, they could not recover upon the deed.
It is possible that Nicaisé sold the land called the Porter tract to Porter, at some other time, and by some other mode than by .this deed. For it is shown that Porter was in possession of the land, by building a cabin upon it, and using it as a hospital for the sick under his charge. But this wTould not establish the plaintiffs’ claim, ■ as here asserted; for the deed being the foundation of their claim, it is clearly shown that the land is not embraced within its description, and therefore that no title to it was conveyed thereby; and this is manifest from the testimony of this witness. But if the testimony under consideration could have any effect in support of the plaintiffs’ title, it must be on the ground of showing by parol, that the land immediately south of the Hyde line was intended to be embraced in the deed of Nicaise offered in evidence.
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Handy, J.,
delivered the opinion'of • the court.
This record presents three questions for consideration :
1st. Whether the evidence is sufficient, to identify the land sought to he recovered, with that embraced in the deed of Charles Nicaise to John Porter, upon which the plaintiffs’ title depends.
2d. Whether it was competent, under the state of facts shown by the evidence, for the defendants to set up an outstanding title [411]*411to the premises, in Martial and Joseph Nicaise, to defeat the recovery of the plaintiffs.
3d. Whether the verdict as to the amount given for mesne profits is not excessive and erroneous.
1. The title of the plaintiffs is founded on a deed executed by Charles Nicaise to John Porter, their father, bearing date in 1816, describing the land as contained within certain specified bounds, and “ leginning at the southeast corner of the land of Lieutenant Rapp ; from thence running north,” &c. The land is claimed in the declaration according to the description in this deed; and the first question for consideration is, whether the land sought to be recovered in this action is included within the description of the land specified in the deed. It was manifestly incumbent on the plaintiffs to establish this identity, and much testimony directed to the point was offered by both parties.
After a careful examination of the evidence set out in the record, we are satisfied that the land described in this deed cannot embrace the land in the possession of the defendants, and cannot be the same as that spoken of by the witnesses as “ the Porter tract” or the “ Porter claim.”
The foundation of the plaintiffs’ claim, as to identity of the land, is that the land conveyed by the deed to Porter lies immediately south of a tract called the Hyde tract, whose southern line was its northern boundary. That tract is shown to have belonged to Bos-worth, and afterwards to Williams and Hyde, and afterwards to Farvé, but never to Rapp. In order, therefore, to establish the locality claimed by the plaintiffs, and to bring their claim within the description contained in their deed, the starting-point of the boundary mentioned in their deed must have been the southeast corner of the Bosworth, Williams, or Hyde tract, and not of the Rapp tract. “ Tho southeast corner of the Rapp tract” is the starting-point specified in the deed ; and it is shown by the testimony, as it appears to be clear from the nature of the case, that it is absolutely necessary to the location of the land to ascertain and fix that starting-point ; for there is no other point or landmark stated in the deed by Avhich it can be located. Hence, if the land lying immediately north of the tract as here claimed was never known as the land of Rapp, it is impossible to maintain that a description [412]*412commencing at the southeast corner of the Rapp tract can embrace land lying immediately south of the line of what was called and known as the Hyde tract; and the description and designation of the land in the deed cannot support the claim set up against the land in controversy here.
But it is positively shown by the testimony of Westbrook, a witness for the plaintiff, and the only witness who undertakes to state the locality of the Rapp tract, that that tract lay south of the Ad-din tract. His testimony shows that the description of the land in the deed cannot be fulfilled by locating the land immediately south of the Hyde tract, and that from his knowledge of the Rapp land, the deed cannot embrace the land here in dispute.
The testimony relied on in support of the claim of the plaintiffs is, principally that of the witness Parvb, who testified that Charles Nicaise had told him that the land lying immediately south of the Hyde tract was the same land sold by him to Porter, and that witness had assisted in running the line between the Hyde tract and what he calls the Porter tract; and that the surveyor, who is since deceased, told him that that was the northern line of the Porter tract. This witness also stated that he knew one corner of the north line of the Porter tract, and saw a post there; that the Porter tract was bounded on the north by the Hyde tract. But the witness also stated that he did not know where the land lay as described in the deed ; that he never knew, either of his own knowledge or by report, where the southeast corner of Rapp’s tract is, or where that tract was situated; that he did not know where the metes and bounds of the lands as described in the deed are, and could not tell where the land is by the description in the deed.
Considering the purport of this testimony, and especially with reference to the evidence above stated in relation to the locality of the land, it cannot be properly regarded as testimony to establish the boundary of the land conveyed by the deed. It was pertinent to the question of what was known as the ‘■‘■Porter tract," and what was its northern boundary, and whether Nicaise had not in some manner other than by the deed, sold that tract to Porter.
If the landmarks designated in the deed had been destroyed, or no particular landmarks or monuments had been mentioned in it, it might have been competent to show the boundaries of the tract by [413]*413proving declarations of persons, presumed from their situation to have a knowledge of it. But where the boundary is designated, and capable of being readily ascertained by measurement, it is not competent to show, in a proceeding like this, that it is a mistake, and to show by hearsay what was intended to be conveyed in opposition to the definite description in the deed. For that would be to prove by parol a conveyance of a different tract of land from that mentioned in the deed.
The question was, whether the land conveyed by the deed, and as therein described, lay immediately south of the Hyde tract ? If it did, as claimed by the plaintiffs, there was no difficulty in establishing the fact, and no necessity for resorting to hearsay testimony, as is fully shown by the statements of the rvitness under consideration. If it did not, it was not embraced in the deed, and the plaintiffs’ claim was without legal foundation. It was immaterial to the question in issue and to the title claimed by the plaintiffs, whether Nicaise had sold the land south of the Hyde tract to Porter, or whether the northern boundary of the tract so sold was the southern boundary of the Hyde tract; for the plaintiffs founded their claim upon the deed; and if the land was not embraced in the boundaries therein stated, they could not recover upon the deed.
It is possible that Nicaisé sold the land called the Porter tract to Porter, at some other time, and by some other mode than by .this deed. For it is shown that Porter was in possession of the land, by building a cabin upon it, and using it as a hospital for the sick under his charge. But this wTould not establish the plaintiffs’ claim, ■ as here asserted; for the deed being the foundation of their claim, it is clearly shown that the land is not embraced within its description, and therefore that no title to it was conveyed thereby; and this is manifest from the testimony of this witness. But if the testimony under consideration could have any effect in support of the plaintiffs’ title, it must be on the ground of showing by parol, that the land immediately south of the Hyde line was intended to be embraced in the deed of Nicaise offered in evidence. The testimony was clearly incompetent in this aspect; and it appears to be the only point of view in which it is calculated to sustain the plaintiffs’ claim. It was not sufficient in law to establish the plaintiffs! title.
[414]*414But if it be conceded, that the deed conveyed the land immediately south of the Hyde line, it is shown quite clearly, by the testimony, that the hotel lot of the defendant Nixon is not embraced in the so-called Porter tract. Johnson testifies that the hotel lot is over two hundred feet from the Hyde line. The Porter tract embraced one hundred and eighty or one hundred and ninety feet in width, south from the Hyde tract. But the deed to Nixon was only for seventy feet, lying immediately north of the division line between Pray’s heirs and White; so that the hotel lot, if it be more than two hundred feet from the Hyde line, as stated by Johnson, could not have embraced any part of the Porter tract, which extended one hundred and eighty or one hundred and ninety feet only, south -of the Hyde tract. It must, therefore, have been on the Addin tract.
Apart from these views of the question, the testimony in the present record, upon the point of identity of the land in the possession of the defendants with that conveyed in the deed, appears to be as fully liable to the objection of uncertainty as when the case was heretofore before us ; and upon this ground we think that the testimony is insufficient to sustain the verdict.
2. It appears from the evidence, that the deed was executed in the year 1816, and that Porter was in possession of a parcel of land, on which he built a cabin, which was used as a hospital for sick sailprs under his command, and which is probably the land referred to in the testimony as the Porter tract. He occupied it for the use stated until the year 1819, when he left the Bay St. Louis, with the vessel of which he had the command, and quitted possession of the land, and is not shown to have taken possession of it afterwards, or to have done any act showing that he continued to exercise ownership of it, or to claim it; and it appears to have been sold for taxes in the year 1828, as the property of Porter. The defendants offered in evidence, and read from the 3d vol. of American State Papers, to show that Martial and Joseph Nicaise had a claim upon the land in controversy; and read the sebond section of the Act of Congress of 1819, March od, confirming claims contained in the several reports of commissioners, and founded on Spanish orders of survey, &c. The act of Congress offered in evidence, is not stated with certainty in the bill of exceptions; but supposing [415]*415the act relied on to be that contained in the 3d volume of the United States Statutes at Large, p. 528, ch. C., and as the question may arise again upon the now trial, we shall consider the act here referred to as the one offered in evidence.
It appears from the evidence, that Martial and Joseph Nicaise are dead,-leaving numerous children and heirs, and no conveyance of their title, vested in them in virtue of the act of Congress, is shown. The confirmation of their title by the act of Congress took place subsequently to the date of the deed to Porter, and it appears to be conceded that their claim embraced the land in controversy.
There being no conveyance of their title, and nothing shown to divest .it, it must be considered as a subsisting title, unless it is barred by the Statute of Limitations; and the question is, whether Porter and his heirs occupy a position which entitles them to the benefit of the statute.
In order to entitle them to the protection of the statute against the persons shown to have the legal title, it is necessary that they should have been in possession of the land for the period of time required by the statute to create the bar. And though in the case of wild and uncultivated lands, it may not be necessary that they should have been in the actual occupancy, yet it is necessary that they should have exercised acts of ownership sufficient to let it be known to the community that they claimed and exercised ownership of the land. In this case it appears that, in about three years after the date of the deed, Porter abandoned the possession of the land, and is not shown to have exercised any act of ownership over it ever after that time. His claim had not then matured into a valid title under the statute, and the subsequent time, when he has been out of possession, and exercising no control over it, cannot be taken into consideration as a part of the time of his possession. He therefore never had possession for a period sufficient to bar the outstanding title.
Nor can the presumption in favor of the due execution of a conveyance by the person having the legal title, be extended to him, under such circumstances. For that presumption is in support of the possession, and can only prevail where possession has been taken and continued concurrently with the deed under which the party claims title.
[416]*416But it is objected, that the defendants cannot avail themselves of this outstanding title, because they are mere intruders. It appears that both defendants have possession under color of title, and cannot, therefore, be held to be intruders; and whatever may be said of the title of White, it is evident that the possession of Nixon is in good faith, and under a deed founded on a valuable consideration.
We think, therefore, that under the state of facts shown by the record, it was competent for the defendants to avail themselves- of the outstanding title as a defence.
The remaining question is as to the amount allowed for mesne profits.
It appears by the testimony, that after the purchase of a part of the property by Mrs. Nixon, she had a hotel erected on it, -worth about six or seven thousand dollars, in the year 1852; that with the hotel upon it, the property would have been worth $450 or $500 per annum; but without the hotel, it would have rented for little or nothing by the year; and that the hotel was destroyed by fire in 1858, and was insured. The verdict was for $2400. The defendants had given notice of their claim for improvements put upon the premises to the amount of $10,000, under the provisions of the statute; but as the hotel, on which that claim was founded, was destroyed by fire before the trial, that claim was not allowed.
The question arising upon these facts is, whether Mrs. Nixon was accountable for the rent of the premises at their value after the erection of the hotel, and which was produced by the erection of the hotel, when she was entitled to nothing for the value of the improvement put on the premises by erecting the hotel, as that had been destroyed by fire before the trial.
The statute allowing to the defendant compensation for valuable improvements, appears to proceed upon the principle of recognizing distinct rights in the parties, as to the value of the land without the improvements put upon it by the defendant and the value with the improvements, allowing the defendant for the value he has thereby added to the land. If he has made no improvements, he is chargeable with the fair value which the use of the land was reasonably worth. But if he has made improvements which are destroyed by casualty, so that no permanent value is imparted thereby to the [417]*417land, and he is, therefore, entitled to no compensation for them, is he to be charged with anything more than the land would have been worth, if no improvements had been made ? It appears to he just that he should not, and that, in such case, the improvement should be considered, as to both parties, as never having been made. By that rule, no compensation is allowed to the defendant for bis improvements, and he sustains a positive loss by their destruction. It would he most unjust to make him chargeable to the owner for a value which he had imparted to the land, and for which he receives no compensation. That would give the owner compensation where he had sustained no injury. But by allowing the owner the just rent of his land, as if the improvement had never been made, he sustains no loss, and-the defendant is in justice hound to pay a fair value for his use of the property; and as the defendant derives no benefit from the improvements, he should not suffer a loss by being made liable to the owner for the enhanced value of the land caused by the improvements during their existence. This appears to be in accordance with the spirit of the statute, as well as the plain dictates of justice. The verdict was founded on the contrary view, and we think it erroneous.
Numerous instructions were granted and refused at the instance of both parties, involving the views above stated. So far as either the refusal or granting of these instructions are in conflict with those views, the action of the court upon them was erroneous, and can be corrected upon the new trial agreeably to the views here stated.
Judgment reversed, and cause remanded for a new trial*