
    McGill v. Kennedy and Another.
    
    Where in a suit, under the occupying-claimant law, to recover the value of improvements made on land, the case was at issue upon the making of the improvements, it seems that the plaintiff might prove the value.
    But, under that issue, a title-bond, introduced to show that the plaintiff had no claim for improvements, or evidence that the plaintiff had come into Court and acknowledged that his claim had been paid, is inadmissible, because not pertinent to the issue.
    The defendant, in such case, cannot prove the present value of the improvements. The plaintiff is entitled to recover the value of all lasting- improvements made by him prior to the commencement of the defendant’s action to recover the land occupied; and the value of such improvements, at the time of the recovery in that action, is the measure of damages in this action.
    
      Wednesday, June 2.
    
    APPEAL from the Blackford Circuit Court.
    
      
       The petition for a rehearing in this case was filed on the 22d of June, and overruled on the 14th of November.
      
    
   Davison, J.

This was a petition by the appellees, who were the plaintiffs, against Me Gill, under the occupying-claimant law. The facts set forth in the petition, so far as they relate to questions arising in the record, are as follows :

One Craig, having bought a tract of land situate in Blackford county, and having received a deed therefor, sold it to Me Callister, and made him a deed. Me Callister took possession of the land, cleared 17 acres, erected thereon a dwelling-house, a stable, and a saw-mill, and made other improvements, &c. After this, Me Callister sold and conveyed the land to Kennedy, who also took possession and made improvements, &c. And afterwards Me Gill brought an action of ejectment for the land, and recovered it; to which action Kennedy and Me Callister were made defendants. The petition prays that a jury be impanneléd to assess the plaintiffs’ damages resulting from the loss of then-improvements, &c.

Me Grill’s answer to the petition contains four paragraphs. To the second, third, and fourth, the plaintiffs demurred, and their demurrers were sustained; but to these rulings no exception was taken; hence, the action of the Court, in sustaining the demurrers, is not assignable for error, and the pleadings thus disposed of are not before us for consideration. Zehnor v. Beard, 8 Ind. R. 96.

The first paragraph alleges “ that the plaintiffs did not make valuable and lasting improvements on the land described in the petition,” &c.

Upon the issue made by the defense, the cause was submitted to the jury. Verdict for the plaintiffs. And the Court, having refused a new trial, rendered the proper judgment, &e.

During the trial, the plaintiffs offered evidence tending to prove the value of the improvements made on the land by Kennedy, which evidence, though resisted by the defendant, was admitted by the Court. Under the state of the pleadings, this ruling seems to be correct; still the point made is not properly before this Court, because the defendant’s ground of objection to the admission of the evidence does not appear to have been presented to the Circuit Court. 8 Blackf. 277.-9 Ind. R. 205.

The record states that the defendant offered to give in evidence a title-bond for the land, given by Me Callister to Kennedy, for the purpose of showing that Me Callister had no claim for improvements; and also to prove, by competent evidence, that Kennedy had come into open Court and acknowledged that his claim had been fully paid. But the evidence thus offered was rejected by the Court.

As we have seen, the only issue raised by the answer is, whether or not the plaintiffs had made the improvements alleged in their petition. Hence the rejected evidence was plainly inadmissible, because it was not pertinent to the issue.

Further, the defendant, upon the trial, offered to prove the present value of the improvements made by the plaintiffs on the land; but the proposed proof was refused, and we think correctly. The plaintiffs were entitled to recover the value of all lasting improvements made by them prior to the commencement of the action for the recovery of the land. 2 R. S. p. 172, § 617. And the value of such improvements, at the time of ihe recovery in such action, was, in our opinion, the proper measure of damages. A question is raised as to the sufficiency of the proofs to sustain the verdict; but we have carefully examined the evidence, and are fully satisfied that the defendant was not entitled to a new trial.

J. Brownlee, for the appellant.

W. March, for the appellees.

Per Curiam. — The judgment is affirmed, with 5 per cent, damages and costs.  