
    
      Bell’s heirs, vs. Barnet
    
    Chancert.
    Error to the Hardin Circuit; Paul J. Booker, Judge.
    
      Occupant. Improvements. Rents-. Commonwealth Bank paper.
    
    October 30.
   Judge Robertson

delivered the opinion oí’ tho Court.

In 1783, James Bell placed in the hands of William Patton, a land warrant, with a request, that he would locate it for him.

On the 29th of November, 1785, an entry, in the name of James Bel], was made for three hundred acres on the warrant, and on the 10th of November, 1797, the entry was surveyed in the name of Bell.

There is an endorsement on the plat and certificate, purporting to be an assignment of them bj James Bell to Andrew Barnet, the appellee»

On the 16th of June, 1799, a patent issued to Andrew Barnet, for the three hundred acres of land, thus entered and surveyed, in the name of Bell.

In 1807, Bell brought a suit in. chancery, against Barnet, alleging, that Barton, without any authority, had sold his warrant to William Barnet, who made the entry and survey, and assigned them, without his knowledge or assent, to A. Barnet; and praying for a conveyance of the legal title to himself.

On cross appeals from the decree of the Green circuit court, this court, in 1816, decided that Bell was entitled to the land, (the foregoing facts having been satisfactorily established) and remanded the cause, with instructions, to ascertain and allow to Barnet a reasonable compensation, for securing the legal title to the land, and to make “such other orders and decrees, as may be consistent with equity.” See IV. Bibb, 447.

After the return of the case to the circuit court, Bell having died, the suit was revived in the name of his heirs, by bill of revivor.

After which, Barnet filed an answer, in the nature of a cross bill, charging that he had, bona fide, made improvements on the land, of the value of $2000 and praying for a decree for their value.

In their ansvrer to this cross bill, the heirs deny Barnet’s right to compensation, for improvements.

Commissioners, appointed to value the improvements, reported that they were worth $3,869 50 cents.

This report being objected to by the heirs, the court, without making any order in relation to it, or otherwise disposing of it, appointed other commissioners.

After the report of the first commissioners, Barnet amended his cross bill, by inserting $6,000, instead of $2,000, as the value of his improvements;

After this amendment was made, the new commissioners made their report, in which, they estimated the improvements at $6,216 16 cents., and the rents at $1,112 50 cents, leaving a balance in Barnet’s favor, of $3,003 75 cents.

A jury having assessed the compensation of Bar-net, for the location of the warrant, and perfection of the title, to $284, the circuit court decreed to him this latter sum, and that reported by the commissioners, as the balance due for improvements, after deducting one year’s rent, which the commissioners had omitted, inadvertantly, to allow.

The report of the commissioners allowed to Bar-net $25 an acre, for clearing land; $3 50 cents, for “planting and raising apple trees;” and for improvements made after the final decree in this court, in November, 1816, it allowed him $1,983 66 cents, of which, $1,194 16 cents, are for a dwelling house; $225 for “outhouses;” $537 50 cents for clearing twenty-one and one half acres of land; $1,000 for making and putting up “two thousand rails; and $7 for “planting and raising''1 two apples trees.

Exceptions were filed to the report, but were overruled by the court.

Several irregularities are exhibited in the preparatory proceedings. But, waiving these as not now essential, we shall proceed, at once, to notice the principles and details of the report, which was ratified and confirmed by the decree of the circuit court.

That it was consistent with most approved principles of equity, to allow Barnet compensation for his lasting and valuable improvements, we are not disposed to doubt. It is true, that he neither held adversely to Bell, nor under a purchase from him. But in “foro conscienscim" he would be considered as virtually, a purchaser; and is, therefore, entitled to all the equitable rights incident to such a relation. There is nothing in the record, which would warrant the imputation of fraud in the acqusition of the legal title, or of bad faith in the occupancy of the land, prior to the institution of the suit by Bell, or even during its pendency in the circuit court, antecedently to the decision of it by this court. Nor could we say that the retention of the possession, even until this time, has been in fact, “maiajide.”

Person ac-tokml^and entering on it bonafide, sup-must be paid pavement,

Such occupant must be improre-must be^har-Ked rent for lo,"rent/or improvements¿ annually, as maJewere

Although William Barnet had no authority to make the assignment, and exhibited none, neveriheless, as warrants were sometimes transferred, by livery simply, and as there is no badge of fraud, but intrinsic evidence of fairness and good faith, in the contract of assignment, we feel no hesitation in considering it sufficiently manifest, that Andrew Barnet acquired the title to the land, and entered upon it “bona jidef supposing it to be his own.

We are inclined, therefore, to treat h.im, for all the purposes of this controversy, as one who had bought the land from James Bell by a verbal contract, which Bell could disregard. Barnet can, certainly, not reasonably expect, and, as a just man, ought not to desire more.

Placing the parties in this relative attitude, which is more favorable to Barnet than any other,'which equity could tolerate, the general principle, which should regulate their mutual rights and liabilities, may be seen in the case of Ewing’s heirs, et al. vs. Handley’s executors, IV. Littell’s Reports, 371-4.

Up to November, 1816, when it was decided by this court, that the land was Bell’s, Barnet should be alio wed the actual value or costs of the improvements which he had made, to be estimated at the times, respectively, when they were made, that is the original value or prime cost.

And he should be charged with the rents and profits, that is, the actual value of the use of the land and of the improvements annually, as they were upon it.

This principle has been outraged by the commissioners, and disregarded by the circuit court.

Although we have no other evidence in the record, of the value of the improvements, than the report of the commissioners; and, although we shall yield a reasonable, and even a very liberal credence to the opinions of the commissioners, and ought not to set aside their report, without clear and satisfactory evidence of its injustice, yet, notwithstanding all this allowance, we cannot conceal from our own judgments and consciences, the erroneous and unprecedented exorbitance of the estimate, for clearing binds Twenty-five’ dollars an acre, must be too much. What did the clearing cost? How much time would have been necessarily consumed by one laboring man, in clearinsr one acre? For what could he have been hired? These are the proper criteria of cost. Was the land, after it was cleared, worth twenty-five dollars an acre? If it were not, the owner ought not lo be charged with that sum, for cutting down and destroying his timber.

Chancellor will judicial ly know, the history and topography of the country, and the ordinary price of labor, and if no peculiar reason appear to the contrary, will ex ojjido, quash report of commissioners, allowing an unjust and excessive price for cle'ring land, or mi-kins; other improvements.

Report of commissioners, allowing $25 per acre, for cleadng land, should be quashed, unless peculiar circumstances are exhibited to justify ft.

What judicial knowledge we have of the history and topography of the country, and of the prices of ordinary labor, will not allow us to doubt that this valuation of the cost of clearing, is excessively high, and palpably unjust.

The conscience of the chancellor must be surprised at it, and cannot sanction it; and, for this reason alone, if there were no other, the report ought to have been quashed. It ought to have been set aside as promptly, as it surley would have been, if the allowance had been one hundred dollars,or even five hundred dollars, an acre. It is as evident, that the one is two high, as that either of the others would be. The only difference, is in degree. Such a report could not be sustained, unless some peculiar and extraordinary facts were exhibited, to justify if. None such are shewn, or can be presumed to have existed; and therefore, the circuit court ought, for this reason, to have set aside the report.

The commissioners ought not to have allowed Barnet for “planting and raising” apple trees. He is entitled to compensation for planting alone. He should not be paid for (he growing of the trees. This being a process of. nature, cost him neither labor nor money.

It was not right to allow Barnet the cost of the improvements which were made after the decision against him, by this court, in November, 1816. He knew when he made these, that the land was not his and never could be, unless he should purchase it again from Bell, or his heirs.

These improvements, in the eye of the chancellor, were therefore, not made ubona fAef* and consequently, the reason for allowing their costs céases, ;md ílratione cessante cessat itiam fe*.’’ By the common law, he would not be allowed any thing for such improvements, however expensive.

Improvements made by occupant, after decision of court against his title to land, are not bona fide. , Therefore, he is not entitled to their prime costs, but only to so much, aulmentedVe vendible price of the land,

malafide, shall receive nptbing for ¡^ñts,Pnníesfe they render lancl really more valúa-ble.

As bonafiie 0jt®uP®f*™ oost7forhis improye-inents, ire should pay ior use from time of making them.

Betas one man should not be benefited by another’s labor or money, without making an adequate recompense, and as Bell’s heirs should do what is just, before they exact equity from Barnet, they should be held accountable for ameliorations. If their land, when they receive it, shall be enhanced in value, or in its vendible price, by the improvements put upon it since 1816, to the extent of such augmented valúe, they should be charged.

But if the land be not really more valuable in consequence of these improvements, they should pay nothing for thern; because they were made by one, who ■knew, without any doubt, that he was makiiig use of theirland without their consent. Will the land sell for more thanit would,if these latter improvements had not been put upon it? If it would, how much more? This accession, whatever it may be, should be charged to the heirs. But this is all that they should pay for the improvements made since 1816.

Nothing was allowed by tbecommissionersorby the court, for rents, since 1816. The reason for this omission is not stated, nor can any be perceived. If Bar-net should pay for occupying the land, when he honestly considered it his own, he should surely be held responsible for, at least, the reasonable value of t\\e use, whilst he knew that it belonged to another, to whose heirs he would be compelled to surrender it.

If the commissioners could have supposed, that ■clearing the land, was worth twenty-five dollars an acre, it seems to us, that they ought to have estimated the use of it, after it was so expensively improved, at more than one dollar and twenty-five cents, per acre.

And if it were worth no more than one dollar and twenty-five cents, when first cleared, it was worth more, progressively, as more improvements were made upon it, unless the soil deteriorated in a correspondent ratio.

If occupant be charged nothing fot Use of improvements made by him, he should be allowed only for their present value, or the actual amelioration.

Bona fide occupant is'responsible for ■ waste.

For, as Barnet is entitled to be allowed what bis improvements Cost, he should pay something for the use of them, from the time of making them. This' is the rule of reciprocity, and the principie of equity.’

If he be not charged any thing for the use of the improvements, after the land was cleared and enclosed, he ought not to be allowed more, for them, than their present value, or the actual amelioration.

But the commissioners have allowed no more for rent for the last year, than for the first, although, in the intermediate time, many improvements are charged to a large amount. Was their use of no value? If so, the appellants should not pay any thing for them. The only reason why they aré chargeable with them, is, that they are supposed to have increase ed the vaiue and productiveness of théir land, and consequently, to have yielded them profit.

It is singular that the court should have allowed three dollars and fifty cents, for planting and Raising” each apple tree, and should have charged nothing for the use of them; and it is signally unjust, that large sums have been allowed for houses and other improvements, placed on the land, since 1816», when it has been deemed unjust to charge Barnet, even one cent íor the( use of them or the land.

The first report, although less exceptionable than !$hé. j#gt, is liable to the same objections in principle. ThS-icourt took no notice of it. But we suppose that •it was considered as waived, or set aside. There ought, however, to have been some entry in relation to it, on the record.

For the errors which have been noticed, the decree of the circuit court is reversed, the reports of the commissioners set aside, and the cause remaqded, with instructions to ascertain the actual Value, or prime-bpst, of all the improvements made on the land by Barnet,prior to the 1st oí October, 1816; the value of the use of the land, with the improvements, up to thq same time; its value since that time, without the additional improvements since put upon it; and the ■accession of value, if any, to the real value or vendí» •ble price of the land', which shall have been produced- ibj these latter improvements, together, with, the waste, if any, during the whole occupancy; and then to render a final decree accordingly, and conformably to the principles of this opinion.

Petition foro se-hearing. '

Biggin, for appellant; Owsley, Hardin, and Talbotj for appellee.

The counsel for the appellee, presented the following petition for re-hearing.

The right of the appellee to compensation for ¡in-provements and ameliorations, made by him on the laiKÍ of the appellants, having been^sustained by the opinion of the court, it is with reluctance, that his counsel would again trouble the court with the cause, But, heleiving that the cour; have mistaken some of the facts, assumed in the opinion, and have adopted principles, in some respects, different from those hitherto acted on by this, and other courts of chancery, the counsel feel impelled, by a sense of duty to their client, respectfully to ask of the court, a re-consideration of the cause, and a revision of the opinion rendered.

It is rot intended, nor is it necessary, to go into a particular statement of all the facts of the case. The principles on which the cause turns, and those adverted to by the court, grew out of a report, made by commissioners, appointed by the court below, to assess improvements, rents, &c.; and it will be necessary only, to call the attention of the court, to that report, to shew that the facts stated in th*? opinion, have been incorrectly assumed.

In pursuance to the order of court, appointing them^ the commissioners have reported, not only as the court have assumed, the valup of the rents of the land^, up to the former decision of this court in 1816, but also, the value, after that decision, up to the time of making out the ^report, in 1826. The report closes on page 120 of the record, and by adverting to that part of the report contained on that page, i he court ■will find, that for rents, up to the former decision, in J816, the appellee is charged with $ 1,091 25 cents, and that for rents, from that decision, up to the date of the report, in 1826, he is charged with th* sum of $1,912 50 cents, making an aggregate charge against him, of $3,003 75 cents, for rents. This sum taken from $6,216 16 cents, the aggregate value assessed in favor of the appellee, for improvements* made by him on the land, both before and afté^ the decision, in 1816, leaves a ballance in his fav&r, of $3,212 39 cents; from which, deduct one year’s rent, adjudged by the circuit court, to have been omitted, since the former decision, leaves precisely the amount in favor of the appellee, which was decreed to him by that court.

Having thus briefly called the attention of the court, to that part of the report, which will present the assumed fact, in a correct point of view, the counsel of the appellee, will proceed to notice the points of law, which they respectfully contend, have been incorrectly ruled by the court.

The opinion of the court approves and sanctions the right of the appellee, to improvements made on the land by him, after the former decision of this court, as well as those which were made before; but a distinction is, notwithstanding, taken between the two, and a different rule is adopted for ascertaining the value of the latter, from that which is made to govern the former.

That it would be improper to allow the appellee, any thing for improvements, made upon the land after the decision of this court, in 1816, above the value of the rents, the counsel will not pretend to controvert. After that decision, the appellee may not be considered as assuming such a favorable attitude, in the eye of the chancellor, as to authorize a decree in his favor, for improvements afterwards made. But as ihe court have correctly remarked, he ought not, even after that decision, to be viewed as a fraudulent occupier of thelqnd, and though not entitled to the entire aid of the court, in decreeing compensation to him, for the. after improvements, he should be allowed to bring those into nccounf, s0 to diminish the amount of rent allowed against him, for Ihé use of the land. It was upon this principle, that the case of Thompson and Mason, &c. IV. Bibb, 195, was decided; and that decision is apprpved in the case referred to, by the court.

In taking the amount, however, for such a purpose, and with such an object, it is respectfully contended, that the rule should be applied, which, in the opinion of the court is adopted, as to improvements made before the decision in 1816. If, for any purpose, compensation for after improvements be allowable, no reason is perceived why a different rule for assessing their value, should be adopted to that which is applied 'a improvements, previously made; and no case, either in this court, or in any other court, whose decisions are admitted as authority here, is recollected where such a difference in the application of principles has been made. It might, originally, have been a question of some moment, whether either, as to the improvements made before, or after the decision in 1816, the value should be assessed, according to the actual value, or prime cost, when first made, or according to the increased value of the land. But, as early as the case Hart's heirs vs. Baylor, Har. pa. 597, it was decided by this court, that the actual value or cost of the improvements, when made, without regard to the increased valueof theland, formed the rule for ascertaining the value. The principles decided in that case, it is believed, have been invariably adhered to ever since, and are emphatically sanctioned, as to the improvements made before the first decision of this court, by the decision in the case of Ewing’s administrator, &c. vs. Hanley’s executors, IV. Litt. Rep. 371-4, refered to by the court.

And if the court will take the trouble to look into, the record of the case of Thompson and Mason, &c. IV. Bibb, they will find that the report, as to after improvements, was made out on the same principle, and was sustained by the court. Indeed, it is believed by the counsel of the appellee, that amidst the many cases which have occurred of like nature, not a solitary one can be found, in which the rule adopted by the court, in the opinion in this case, as to after improvements, has ever been recognized.

In their report, the commissioners have estimated the clearing of land, to be of the value of twenty-five dollars per acre, and without any. evidence, other than that contained in the report, the court in their opinion, professing to be governed by their knowledge of the history and topography of the country, and the prices of ordinary labour, have pronounced the valuation exorbitant, and unconscientious; and decreed, that for that reason, it ought to be quashed. The counsel for the appellee, would respectfully suggest,' that in thus taking upon themselves to know that thd commissioners have made an unjust, and expensi/e valuation of the clearing of the land, the courChave assumed a fact which, from any information the counsel possess, as derived from the general history of the' country,. or otherwise, they are unable to approve. The value of clearing an acre of the land, must neu cessariiy depend upon the manner it was done; the number of trees which were cut; the time required for clearing, &c. &c.; and is there no land in this country, the clearing of which is worth twenty-five dollars per acre? May not the land cleared by Bar-net, be worth as much per acre, as any other? How many trees were on an acre of the land cleared, and were they all cut? How long did it take to clear aij acre? Will the knowledge which the cqurt have of the history and topography of the country enable them to answer? If it does, why remand the case; again to the commissioners? why not pronounce what the value is, and put a final end to the contest? The counsel would, however, respectfully contend, that those are inquiries, which should be answered by the testimony of witnesses, or by actual view of the land. /The commissioners were appointed to take this view, and ascertain, from all the circumstances* the real value; they went upon the land, were sworn to estimate the value truly, apd have qiade report, That report, it is contended, should be taken by the, court, as satisfactory evidence of vajue, until disproved by testimony, and as the record contains no evidence contravening the report, the court cannot judicially know, that the valuation is either unjust oy exorbitant.

The court also say, that the commissioners erred in allqwing the appellee three dollars and fifty cents,, for planting and raising apple trees; that the allowance should have been for planting only, and not rais-. ing. But is it intended by the court to say, that it Efequires tí# labor to prune, keep in growing order, and rear an apple orchard? If it requires labor, &c. why should not labor, &c. be paid for, as well as labor of planting? Of what value would be a tree planted, and never again have further attention paid it? Would it be expected by the court, that the tree would be of any value? It is for labor and attention in pruning and rearing, &c. as well as planting, that the commissioners are understood to have made the allowance, and assessed the value for planting and raising, and it is respectfully contended, that in making the estimate, they cannot be said to have erred.

Occupant,ing thatit does not b&» loeg to person from whom he has purchased, ¡8 responsible for rent, from time of bis entry.

But the court say if the planting and raising apple trees be worth three dollars and fifty cents, something ought to be allowed for the use of the trees. The trees may, for aught that appears to the court, however, never have been of any actual benefit to the appellee; they may be young trees, not having come to maturity, so as to bear fruits

If the views which the counsel have taken, be, upon further reflection, sustained by the court, the result,/ it is hoped, will be an affirmance of the decree, of the court below.

Judge Robertson delivered the following response of the court, to the petition for re-hearing.

The opinion, in this case, was more favorable to Barnet, than it ought to have been, if it be proper to construe it as the counsel have dope in their petition.

As he knew, when he obtained an assignment on the plat and certificate, from Patton, that the land belonged to James Bell, be should be held responsible for rpnts, from the time when he took possession. Ewing’s heirs, et al. vs. Handley’s executors, IV. Littell’s Rep’s. 374; and Thompson vs. Mason, et ux. IV. Bibb, 199.

The circuit court allowed for rents, only from the date of the institution of the suit, by Bell’s heirs; and in this, therefore, there is error, to .the prejudice of Bell’s heirs. This idea, we intended to convey in the opinion, but perhaps, we were not sufficiently explicit.

be^ouncí'for rents, only from institu--he hnotUenti-tied to prime cost of his ini-E3T* their value, from time of rentsTgainst him.

Barnet could not expect a more liberal allowance for improvements, than the opinion has authorized.

If he should not pay rents, before the institution of the suit by he would be entitled, not to the cost of his improvements, but only to-their real value, at (-¡me 0f assessing rents against him. This princi-P^8 >s settled in the case in IV. Littell, and is surely sanctioned by the plainest dictates of equal justice, The case in IV. Littell, on the authority of which, this had been decided, establishes a criterion for as-séssing improvements much more liberal; than that which has been fixed by rhany other courts. The suPreme court of the Union, has decided, that the allowance for improvements should no.t exceed the rents. Green vs. Biddle, VIII. Wheaton, 1.

We cannot concur with the counsel, that any principle of equity, or any authority, when rightly understood and applied, has been disregarded by the court in refusing to allow for improvements, made since 1816, more than the accessary value which they have imparted to the land.

Although, in fad, these improvements may not have been made '■'•mala fide,” yet, in law, they cannot be considered as having been made bona fide.

By the decision of this court, in 1816, he was notified that the land was not his. He ought not, therefore, to be suffered to impose on the rightful owners of it, any burden, for which they could not be indemnified in the enhanced value of their land.

Ought he tobe paid by them, for destroying timber by clearing the land, if the land be less valuable when cleared, than it was when in its foreststate? Ought he to be reimbursed the cost of buildings, which are unnecessary, and do not increase the value of the land? If this would be just, by persisting in efforts (o postpone a final decree, and in the mean time, making a prodigal and improvident expenditure of labor, by which the value of the land might be diminished, instead of being augmented, be might virtually defeat Bell’s heirs, and hold the land, notwithstanding, their admitted right to it- Because, in this way* they might be taxed with a sum for this species óf im'provement, which would exceed the value of ■the land, with all its improvements upon it. This would be unjust, and is forbidden by an unbroken series of approved decisions. The counsel 'concede that this would not be equitable; but they insist that Barnet should be allowed for improvements, as muck as '¿he value of the rents, provided, the improvements cost as much as the amount of the rents. Whence this doctrine was derived, we have "been unable to ascertain. it seems to us, to be consistent with neither authority, principle, nor justice. The only case cited in support of it, is that of Thompson vs. Mason, and this case is insufficient to sustain the assumption. Craigmiles, under whom Thompson held, took possession of the land with the knowledge and assent of ■Grant, who owned it, and by whom it was devised to Mason’s wife. Craigmiles bought the land from Craig by a parol contract.

But Barnet did not buy the land from Bell, or occupy it with his assert or with that of his heirs.

The two cases are, therefore, widely different; and consequently, the authority ft the case, in IY. Bibbj fails in its application. There are other reasons why it does not bear on this case, but which it is not necessary to explain.

The decisions of this Court have not, even yet, established any uniform rule for adjusting rents and improvements in equity, in all the diversified cases which may arise. Each case must depend, in some 'degree, on its own peculiar circumstances. But if any one principle be more universal than another, it is, that an occupant who, having taken possession of another’s land, without his knowledge or assent, shall retain the possession against his will, after judicial notice, that it is his, and not the occupant’s, shall not be allowed pay for improvements made after such notice, excepting so far as they shall enhance the value of the land. 0

After such notification, he is, in the eye bf the law, a “mala fide” occupant, and all the reasons for allowing compensation for improvements in equity, entirely fail.

Why then, should such an occupant be permitted to set off improvements against the rents, unless he shall have increased the value of the land to the extent of the value of the rents?

Such a doctrine is inconsistent with its own con-'•eession, and with the principle which it recognizes, arid oh which it professes io;be founded.

The owner of the land in such a case, has a dear and acknowledged right to the profits. This right can be extinguished, only by .paying him their equivalent. If the land be not enhanced in its value, he receives nothing in the improvements. They are of no value to him. Should he, therefore, be compelled to pay any thing for them? If he should, why should the amount be restricted to that of the rents, or reduced to any other standard, than that of their cost? They must be paid for, either at their cost, or at (heir real value. It is admitted, that the occupant will not he entitled to their cost, because, the reason for allowing him that, entirely fails. He must, therefore, be content to receive their vrdue, or in other words, their ameliorations. No reason has been intimated, nor can we imagine one, which would graduate the improvements by the profits.

A bona fide purchaser, who shall be evicted, may set off the interest on the consideration, against the •'■profits, in certain cases, and under certain qualifications; and when he is allowed to do this, he will not be bound to pay any thing for rents, beyond the Interest.

But the principle of this doctrine does not apply to -such a case as this. Between the two classes of cases there is no analogy whatever. And we are inclined To think, that the counsel have, inadvertantly, con■founded the cases.

To set off the improvements against the profits Since 1816, is not only a. misapplication, but a palpable perversion of the principle rvhichVegulates the adjustment of interest and rents. As the land is supposed to be worth the consideration, therefore, the use of the one-may be considered equivalent to that of the other.

Court judid-«Mjknow,. monweakh’s bank paper, bas heen de-predated establishment ¿„llie at any time,

Our opinion, therefore, remains unchanged, that for improvements since the decision bj this court, in 1816, Barnet is entitled to no more than the ameliorations. And, even this, he receives from the proscriptive bounty and indulgence of the chancellor. The measured am! inflexible justice of the common law, would not allow, him.one cent.

It is conceded, that the court has judicial knowledge of some facts, but the petition denies that it can judicially know that twenty-five dollars an acre, is too much for clearing one hundred acres of land in Green county, Kentucky. Suppose, instead of twenty-five dollars, the court had allowed twenty-five hundred dollars, would the counsel admit that the court .must know, judicially, that the allowance was exorbitant? Surely they would. But even then, we would be unable to answer, with precision; their interrogations. We could not tell them how many trees had been cut down, nor how large, nor of what kind they were, nor what would be the exact value of the laoor of destroying them.

We know, judicially, that the paper of the bank' of the commonwealth has been depreciated, ever since its first circulation; but as judges, we do not know what was the precise value of the paper, at any given period, or at any one place, as its valhe has been diSereht, at different times and places.

Would the counsel concede, that we would know, jodici lily, that one hundred dollars is too much for matting an axe? Then suffer us to retort the question, how much did the axe cost? -how long was the manufacturer employed in making it? How much iron and how much steel were expended in making it? What sort of an axe is.it? Can they respond ? Their inability to do so, does not prove that they do not know that one hundred dollars was an exorbitant charge for the axe.

They would know that ten dollars would be too much; but they might not know that four dollars would be extravagant.

They would also know, that five dollars would ex-seed the value of the ordinary- manual labor of one. man, for one day; but they might not know that one-¿ollar would be too much.

By what process could it be ascertained by the court, without the proof of facts, that twenty-five hundred dollars an acre, would transcend the cost of clearing a large farm? By the same process, it mu^t be known that twenty-five dollars an acre would be too much.

There can be no one hundred acres of cultivable land in Kentucky, of the value of Bell’s land, the clearing of which, can be worth $2500, or twenty-five-dollars an aeree. We repeat that our knowledge of the prices of labor, and the topography of the country, will not permit us to doubt, that such a price, would exceed the actual cost.

If the court did not know what sort of a thing an-axe is nor the materials of which it is made, nor the ordinary labor employed in its manufacture, it could-not know, judicially, that one hundred dollars would be-more than its value.

The like knowledge of the like facts, enables the court to determine, that $2,500, exceed the cost of clearing one hundred acres of land.

What should be the precise value of the axe. or the-exact cost of clearing the land, we could not know* as these would depend, to some extent, on the peculiar facts of each case.

But no circumstances, within the range of probability, could extend the value of an axe, to one hundred dollars, or the cost of clearing one hundred acres of land, to $2,500. And therefore, in either case, the court would be authorized to decide that such a charge is exorbitant.

We have never heard before, of such a charge being made or sanctioned; and it seems to us impossible that it can be just; more especially, if the land was worth only one dollar and twenty-five cents per acre, annually, after such expensive improvements.

We have said, in the opinion, as much about the apple trees as we deem necessary,, or befitting the subject.

In supposing that no allowance had been made for rents since 1816, we were mistaken. The singular manner in which the items are presented in the report of the commissioners, led to this mistake of fact. As it is detected, by a minute re-examinaiion of the record, it is proper to correct it, for the sake of historical accuracy, although its correction can have no influence on the principles or the effect of the opinion.

Wherefore, the only change which has resulted, in the opinion, from the reflections excited by the petition, is, that the circuit court is now directed to charge Barnet with rents, during the whole period of his occupancy,instead of charging him, as it did, with rents only from the institution of Bell’s suit, and in relation to which, the opinion was ambiguous, or at least left room to doubt.

Consequently, the petition is overruled.  