
    Henry J. Knox and Others versus Humphrey Hook.
    The act of 1807, c. 74, for the limitation and settlement of real actions, does not extend to a case where one is in possession under a contract for a title from the owner of the land, although the time has expired within which he could demand a title from the owner.
    In this action the demandants counted upon the seizin of Henry Knox, Esq., deceased, their late father, within forty years.
    The tenant pleaded the general issue ; and also that he held the demanded.premises by virtue of a possession and improvement for more than six years previous to the second day of March, 1808, the date of the “ act for the limitation of certain real actions, and for the equitable settlement of certain claims arising in real actions.” 
    
    At the trial, which was had before the present Chief Justice, at the sittings here after the last June Term, the title of the demand-ants’ said ancestor, and their right, as his heirs, were admitted ; and the tenant offered evidence to the jury, to show the extent of his pas session and improvement.
    The demandants objected to the admission of this evidence, it appearing that the tenant did not enter, claiming under an adverse title,, but that one Jonathan Bagley had been the original settler, having entered under the said Henry Knox, with an agreement to= purchase-the premises at a stipulated price, said Knox having given a bond to-convey the same upon certain conditions which had never been performed ; that, in 1800, the tenant, Hook, purchased the improvements of the said original settler, and entered upon and occupied the-same ; and that, in 1807, the said Henry Knox having transferred his-right and interest to Israel Thorndike, the said Thorndike entered; into bond to the said Hook, to convey the premises to him upon certain conditions to be performed by him within a limited time, which time had expired, without the performance of said conditions, before the commencement of this action.
    *It also appeared that Hook had taken off the land [*330] great quantities of timber, to the amount (in the opinion of some of the witnesses) of more than the value of the buildings and improvements made by him.
    It was likewise in evidence, that the notes, given to the demand ants’ said ancestor, had been cancelled, and were ready to be delivered to said Hook, and that he might have obtained a title to the demanded premises, by paying the consideration originally agreed upon and interest, long after the expiration of the time fixed in the bond for paying the same.
    Upon this evidence it was insisted, on the part of the demandants, that the tenant was a lessee, claiming under the same title as the demandants, and could not be entitled to any improvements (if any there were) on the demanded premises in virtue of the act aforesaid.
    For the tenant it was insisted that he was entitled to his improvements, and that the jury ought to inquire, and by their verdict ascertain, both the value of the land and of the improvements, agreeably to the provisions of the said act.
    The verdict was accordingly taken as to the value of the land and improvements, subject to the opinion of the Court, whether the tenant, Hook, is entitled to any improvements, under the said act or law j and the verdict was to be so amended, and such judgment be rendered thereon, as, in the opinion of the Court, should be conformable to law
    
      Foote, for the demandants.
    
      Wilson, for the tenant.
    
      
      
        Stat. 1807, c. 74.
    
   Parker, C. J.

The tenant in this case claims the benefit of the act, entitled An act for the limitation of certain real actions, and for the equitable settlement of certain claims arising in real actions ” ; and he founds his claim upon his having been in possession of the demanded premises at the time the act passed, and six years before the commencement of the action according to the provisions of that act.

[*331] * This claim is resisted by the demandants, on the ground that the tenant originally entered under a contract to purchase the land of the late Henry Knox, Esquire, the proprietor, and so could not be considered as within the intention of the legislature, to be provided for as aforesaid.

We are of opinion that the claim of the tenant cannot prevail; the intention of the statute manifestly being, to provide for those settlers upon land who had entered against the will or without the knowledge of the proprietor ; and not for those who had entered under a lawful contract, by the performance of which they might have entitled themselves to a conveyance of the land, or to adequate damages in case the proprietor should have refused to fulfil the contract on his part.

The words of the section of the act, which respects this subject, are strongly indicative of this intention. They are, “ Where any action has been or may hereafter be commenced against any persons, for the recovery of any lands or tenements which such persons now hold by virtue of a possession and improvement, and which the tenant, or other person under whom he claims, has had in actual possession for the term of six years, or more, before the commencement of such action,” &c. Now a person who has made a contract with the proprietor to purchase, and has entered in pursuance of such contract, cannot be said to hold the lands by virtue of a possession and improvement. He holds by virtue of a contract with the proprietor, and has a legal mode - of coercing the proprietor to give him a title to the lands, or an equivalent in damages. So that every purpose, intended by the law to be secured to those who hold by virtue of a possession and improvement only, may be obtained by such person under his contract. For he either procures a title at a stipulated price, or he obtains payment for his buildings and improvements, by way of dam?ages ; provided the contract is performed on his part and is not performed by the proprietor.

[* 332] * It may also be considered that the legislature intended this provision as a means of inducing proprietors to be less negligent with respect to their lands ; so that trespassers might not be permitted to remain in possession from year to year, with a hope of remaining undisturbed, and thus be encouraged to incur expense upon lands of which they are not the owners ; but that the proprietor should be vigilant in protecting hiS property, and, if he was not, that he should not avail himself of the labor of those who may, in some measure through his negligence, have been led into such expense.

But in such a case as the present, the landlord and tenant are both aware of their rights and their interests. There is no negligence on the part of the former, nor mistake on the part of the latter ; so that the reason of the law seems to have no application.

The land demanded in this action was originally settled upon by Jonathan Bagley, who contracted with the then proprietor for a conveyance of the same, having taken a bond to that effect. In 1800, the present tenant purchased the improvements of Bagley, and entered upon the land under him, undoubtedly meaning to avail himself of the contract with Knox. In 180?, the title of Knox was passed to Thorndike, for whose use this action is brought; and then a new contract was made between Thorndike and the present tenant for the conveyance of the land. The tenant, having failed to perform the contract, now wishes to avail himself of a provision, by which, after having taken all the rents and profits for a number of years, and probably having stripped the land of all the valuable timber, he can compel the proprietor to sell him the land at a price different from that which was agreed on, or to pay him for improvements which may be of little use to the proprietor.

We are satisfied that this case does not come within the letter or the equity of the statute, the benefit of which is claimed by the tenant.

Let the demandants take judgment for possession. 
      
      
        Runney et al. vs. Edmands, 15 Mass. Rep. 291. - Shaw vs. Bradstreet, 1 Mass Rev. 241.
      
     