
    
      James Dellet and Harriet his Wife vs. Benj. F. Whitner and W. W. Starke.
    
    Under a power to sell land, but not to warrant tbe’title, an agreement to make titles with a clause of warranty is not valid, or binding, even to the extent of the power, upon the grantor.
    As a general rule, even in the case of a bona 'fide occupant of land, who supposes himselfthe rightful proprietor, Chancery will not sustain a claim for the value of improvements after deducting rents and profits.
    [Quere, — Would the occupant be accountable for the rents and profits of the land as he originally entered it, — or as improved? Harper, Ch., in Thompson vs. Bostick.]
    
    The case of a party putchasing from one who had a power to sell, but whose contract was void for exceeding his power, would be an exception; but not, after notice. Yet, even after notice, there might be such circumstances of inducement held out by the adverse party as would render a rigid account inequitable.
    Heard, at Columbia, August 1838, before Johnson, Ch., who made following decree :
    The bill states that the complainant, Mrs. Dellet, and her brother, T. T. Willisson, were seized, as tenants in common, of a plantation in Edgefield district, on the Savannah river, opposite the city of Augusta, containing about 1000 acres; that on the 30th March, 1832, t'he said Willisson, for himself and the complainants, contracted with the defendant, Whit-ner, for the sale of the said lands, at the price of $10,000, and on the 20th July, 1833, made and executed titles, for himself, to the said defendant, Whitner. The complainants deny that the said Willisson had any authority from them to sell or convey the said lands, and pray for a writ of partition to make division and severance thereof; but they offer, in their bill, to affirm the said sale and the titles so made and executed, upon the condition that the defendants pay them one half of the said purchase money, the said Willisson being dead and his estate supposed to be insolvent.
    The defendant, Whitner, sold and conveyed the land to one Isaac Henry, and he to the defendant, Starke, who is now in possession.
    The defence mainly relied on is, that the complainant, Del-let, did authorize Willisson to sell the land and receive the purchase money, and that in pursuance of this authority, he did sell to Whitner and receive a great portion of the purchase money. Conceding that there was no authority from Mrs. Dellet, and that the Court could not compel her to make the titles, it is insisted that Dellet ought to be compelled to reimburse Whitner the amount of money which was paid to Wil-lisson under his authoiity.
    On the 22d January, 1832, Willisson wrote to Dellet, residing in Claibourn, Alabama, that the suit with Watkins had been terminated by his agreeing to pay $1,000, and that they were then the undisputed owners of the land; and that he had “ forthwith advertised the land for sale, on the 2d instant,” that the land had been accordingly offered for sale, and that no more than $11,000 being offered, on a credit of one, two, three and four years, he had declined taking it, “ the less reluctantly, because I was anxious to hear from you.” He then suggests the propriety of Dellet “ appointing an attorney in fact here, with a power to sell, with a view to the future execution of the title by yourself and your wife.”
    In answer to this letter, Dellet writes to Willisson, under date 30 th January, 1832; “You request my opinion respecting the disposition now to be made of the land, and in giving my opinion I have no difficulty. The only opinion I can give, and all that I can with propriety say, is, make such sale and such disposition of the land as your own judgment points out or 
      
      sanctions, and I will be content. I will, howbver, in addition, make one or two suggestions; that is to say, would it not be better to sell for cash, or if the sale is on a credit, to require such securities, say notes of hand, with good security, as might' be cashed on such discount as might be agreed on 1 Would it not be proper to avoid a mortgage of the premises to secure the payment of the purchase money 1 Will not much difficulty, expense and trouble probably ensue, to sell on a credit of one, two, three and four years, in travelling to and fro in order to make the collections, together with the probability of suits to enforce said collections 1 Are not the above suggestions strengthened by the intention you say you have of leaving Carolina for Florida as soon as you can.make the necessary arrangements ? The above hints are, however, merely for your refection, and not thrown out for the purpose of impeding any arrangements you are disposed to make respecting the sale of the land. One other suggestion I will here make. If you sell on a credit, suppose you adjust the notes so as to enable you after retaining to yourself what will amount to your part and make you whole, let me have the disposition of the part, due to your sister, so that, if we see proper, we may make some arrangement to realize, at once, as much as that part would be fairly worth, in cash or property, say negroes. But here let me again say, the above hints are not for the purpose of advising or directing you, and act as you think proper.” He then speaks of another tract of land in which the family were interested, and adds — “Harriet and myself will, at any moment, aid you in the transfer of all our right and title to the Hamburg lands,” (the lands in question) “ but think it will be proper to make no warranty
    
    Acting on the authority supposed to be given by this letter, ^ Willisson, on the 13th March, 1832, entered into an agreement by and with the defendant, Whitner, wherein he covenanted .for himself and the complainants, to sell these lands to the said Whitner, as trustee of Eliza A. Whitner and her chiE dren, and to make and execute to him, good and sufficient titles, “ with a clause of warranty to be inserted therein;” and Whitner, on his part, covenanted to pay $10,000, of which $7,000 was to be paid in cash, and the remaining $3,000 in one and two years, with interest. Whitner paid the $7,000, in cash, to Willisson, and took possession of the land; after-wards, on the authority of Willisson, he paid $1,000 to' discharge Willisson’s obligation to Watkins, on account of the' compromise of the suit between them; and at another time he paid to Willisson $300 ; so that the whole payments amount to $8,300, leaving a balance due of $1,700.-
    It does not appear that Dellet ever Teceived a cent of the money, or that he ever knew of the sale until he received a letter from Whitner, on the subject of the titles, in 1834, after the death' of Willisson.
    In the construction of powers, the general rifle is that general powers are to be liberally construed, for the obvious reason that, when general powers are obviously intended, all the powers necessary to their execution will be implied; whilst, on the other hand, special limited powers are to be strictly interpreted, because, in terms, the power is limited to the particular object; and whether we interpret Dellet’s letter by one rule or the other, there can be no question that he authorized Willisson to sell the land to the extent of all his control over it, and that he contemplated disposing of Mrs. Dellet’s interest also. “Make such sale or such disposition of the land as your own judgment points out.” “ The above hints are, however, merely for your reflection, and not thrown out for the purpose of impeding any arrangements you are disposed to make respecting the sale of the land.” “Barriet and myself will, at any moment, aid you in transferring all our right and title,” is a language that cannot be misconstrued or misconceived. ' You are to sell the land on such terms as you think proper, and Harriet and myself will convey, according to the forms of law, our interest in it to the purchaser. This is not seriously controverted; but it is insisted, 1st, that it contains no authority to Willisson to receive the complainants’ portion of the purchase money. 2d. Conceding that it does, yet in' law, Dellet had no right to authorize Willisson to dispose of his wife’s interest; and Wliitner having purchased with d knowledge of all the facts, he is presumed to know the law, and therefore Dellet is not liable to reimburse any portion of the money paid, to Willisson, on that account.
    I have found some difficulty as to the first of these propositions, but from the best lights I have been able to bring to bear on the subject, I incline to think that the letter contains an authority to Willisson to receive the purchase money. A naked power to sell land does not necessarily impart a power to convey, or receive the purchase money. This position is sustained by the case of Minn vs. Jottife, (1st Moody & Robertson, 326,) citbd at the bar from one of the Digests; and although the book cannot be obtained here, I am satisfied with the correctness of the principle. Sales of real estates are frequently made through the agency of auctioneers, brokers and other agents, acting under mere verbal authority, and whether in that form or in writing, their power, according to the usage of the country, consists in making a treaty for the sale. The seller will not be supposed to have confided to them, in this loose way, the power of disposing of his estate without first ascertaining that they had acted in pursuance of his authority, nor would the purchaser part with his money without being first secure in his title. But there is no question that these powers may be superadded to the power to sell. The owner of an estate may, if he will, authorize another to sell and convey and receive the price. Now, in this case, the power to1 make title is expressly reserved to the complainants,- and-whether the power to receive the money was conferred, is the? ■ question.
    Such is the imperfection of language, that it is often very difficult to express the precise idea intended to be conveyed, and such the, incongruity which is frequently found in contracts drawn up in haste, or by inexperienced clerks, that the courts have been obliged to frame rules founded on experience, to ascertain their meaning ;• amongst these will be found the general rule, that the intention of the parties, to be collected from the whole instrument, shall prevail. The situation and relation of the parties, and the subject matter of the contract, are also frequently called in to aid in the interpretation; and these rules apply to all compacts, whether it be the constitution of a government, or a contract for the sale of a mouse trap.
    The complainants and Wiliisson were the joint owners of the land; the former resided in Alabama, at the distance of 400 or 500 miles, and Wiliisson here where the sale was to be made. Dellet’s instructions are to “sell for cash,” and, if they had stopped here, how was it possible for Wiliisson to make a sale without the power to receive the money? Del-let was not here to receive it — there was no intimation of.a wish or an intention to be present to receive the money, and if he thought proper to remain at home, any contract that Wiliisson, who was equally interested, might make, might have been rendered nugatory. That he did not contemplate being present is, 1 think, apparent from his further instructions: “ make such disposition of the land as your own judgment points out or sanctions, and 1 will be content;” sell for cash “if yon can;” if not, “take .notes, and take care so to adjust them that I may have the disposition of that part to which my wife is entitled,” is the language of the letter. Now this power, although limited to a particular object, is, under the authority to “ make such disposition of the land as your judgment shall point out,” as general, as to that particular object, as language can make it The only limitation to it is the reservation'of the right of the complainants to make the titles, and it .consequently includes the power to receive the money, for that is incident to the disposition of it.
    The second position is, I think, very fully sustained by the case of Owens vs. Hull, cited from (9 Peters,- 607, 627.) There, an executor authorized an agent to sell some slaves which belonged to his testator in Louisiana. According to the laws of that State, an executor could not dispose of this property without an order from the tribunal having jurisdiction over the subject. The agent sold, however, without such order, and the slaves were afterwards recovered from the purchaser by the persons entitled under the will, and this was an action by the purchaser, against the executor, to recover back the money paid for the slaves; and’ the Court held that he was not entitled to recover, on the ground that the authority to sell implies the power to sell only according to the forms of law where the sales were to be made; and presuming, as the law does, that the purchaser knew what the law was, he contracted to purchase no more than the agent was entitled to sell, and that the principal was not bound. Now, according to the laws of this State, Dellet had no right to dispose of his wife’s lands beyond the term of his own life, and one third part in fee, if he survived her; and if Whitner, knowing, as the law presumes, and as a lawyer of long standing he must have known, had paid the money to Willisson, on the agreement oí Dellet to make titles for himself, according to the rule before laid down, he would have no right to claim from Dellet a remuneration for the money paid to Willisson on account of his wife’s interest. He would have got all that he contracted to purchase, and it would have been his own folly to make a bad bargain. This case does not strike me, however, as falling within the principle. Dellet did more than authorize Wil-' lisson to dispose of bis own interest — “ mj wife and myself will, at any moment, aid yon in the transferring all our title pnd interest,” is the language of the letter. What is this but a guaranty that his wife would join him in making a title to the purchaser \ Say that he has no power to compel his wife to join him in a conveyance, yet she may voluntarily, or on sufficient consideration, do'so. If one will undertake to do an act, not in its nature impossible — if he fails he is clearly bound to refund the consideration paid.
    There is, however, another ground on which I think the complainant must prevail. The authority given by Dellet to Willisson was merely to sell, and it is very clear that, under this power, he was not authorized to covenant that Dellet and wife should make a conveyance with a covenant of warranty, In Gibson vs. Colt, (7 Johnson’s Rep. 390,) the owners of a ship authorized the master to sell the ship as' they themselves might or could sell her. At the time of the sale, the master represented to the purchaser that she was a registered ship, when in fact she only sailed under a coasting license, and it was held that the owners were not answerable for this false representation, Nixon vs. Hysirott, (5 Johnson, 58,) is more distinctly in point. There, the agent’s authority was to grant, sell, release, &c., in fee, pertain lots of land, and to execute, seal and deliver, in the name of his principal, such conveyance and assurance in law to the purchaser, as should be needful and necessary, according to the judgment of the attorney; — and it was held that a conveyance or assurance was. good without the usual covenants of seisin or other personal covenants, and that the principal was not bound by such covenants. vs. Harrison, (3 Term Rep., 757,) is to the same’ point. Besides, here there is an express negation of the authority to warrant — “Harriet and myself will, at any moment, aid you in the transferring of all our right and title,” b\it think it will be proper to make no warranty.” This, it is said, is controlled by the general discretionary powers so amply given, but it is impossible to regard it otherwise than as an express limitation oí’those general powers.
    In this contract there is an express covenant by Willison, in behalf of himself and the complainants, to make good and sufficient titles, with a clause of warranty to be inserted therein. This covenant was not binding on Dellet, nor was Whit-ner bound to accept a title without the warranty. Whitner has proposed, in his answer, to accept the title without the warranty, and it may be said that Dellet is bound by the act of his agent, to the extent of his authority, although it may be void for the excess. This is correct as regards executed contracts. There, the principal would be bound to the extent of the authority given, and the agent, for any thing that may have exceeded it. But this is an executory contract, and wants one of the essential constituents of such a contract— the aggregatio mentum of the civilians. Dellet says, I will not warrant, and Whitner says, I must have a warranty. Del-let has never received any part of the purchase money, nor done any other act affirmatory of the contract. On the contrary, he was not advised of its existence until some two years after, and after the death of Willisson, when he promptly refused to perform it.
    The counsel have suggested the propriety of an order, founded on the complainants’ proposition to make titles on the •receipt of one half of the price at which the land was sold— but, turning that matter through my niind since the argument, I am satisfiéd that it is a subject over which the Court has no power. Mrs, Dellet is not bound even by this offer, and for that reason, the Court would not compel Whitner to accept it. In addition, he might think proper to abandon the contract entirely, and in that event such an order might embarrass him. The parties are left to arrange this matter as. they please.
    
      Out of the cash paid by Whitner, #1,000 was appropriated to pay Willisson’s liability on account of the compromise of the suit with Watkins. That ought to be borne equally, and the counsel for the complainants say that they are authorized, in their behalf, to admit their liability to Whitner for one half. The expenses incurred by Willisson, in the prosecution of the bill to redeem the mortgage and in defence of the action at the suit of Watkins, ought also to be borne equally by the complainants and Willisson; and it is said that there are other mutual accounts between them. No application for a reference of these matters to the commissioner has been made, and perhaps it would be irregular, as Willisson’s representatives are not before the Court; and it is only noticed to leave this branch of the case open for .future proceedings, if the par-lies shall think proper to move in it.
    It is therefore ordered and decreed, that the complainant do pay to the defendant, Benjamin F. Whitner, the sum of five hundred dollars, with interest from the twenty-fourth day of October, 1833; and that a writ of partition do issue to divide the lands described in the pleadings, equally, between the complainants and the defendant, W. W. Starke. The complainants must pay their own costs, and Whitner must pay the costs of the defendant, W. W. Starke, and his own.
    The defendants moved the Court of Appeals to reform the foregoing decree, in the particulars and upon the' grounds following :
    1st. Because no writ of partition should have been ordered.
    2d. Because the complainant, James Dellet, should have been ordered to execute titles for said land, and to cause titles to be also executed by his wife.
    3d. Because the authority given, by Dellet to Willisson, to sell the land, did not restrain him from covenanting for a clause of warranty.
    
      4th. Because the agreement between Willisson and Whittier does not bind Dellet to insert a clause of warranty. „
    5th. Because, even if Willisson was restrained, by the authority from Dellet, from covenanting for a clause of warranty, and even if Dellet was bound, by the agreement between Willisson and Whitner, to insert such a clause, yet, as defendants have paid about three-fouiths of the purchase money, and have taken and held possession of the land, and have waived such a clause, Dellet is bound to execute titles and to cause his wife to execute the same.
    6th. Because the complainants should have been ordered to pay the entire costs of the case.
   Dunicin, Ch.

Mrs. Dellet, and her brother, Thomas T. Willisson, were tenants in common of the Hamburgh lands. The object of the bill was a partition of these lands.' Although partition was, originally, a matter oí peculiarly equitable cognizance, yet, by the Acts of 1748 and 1791, concurrent jurisdiction is vested in the Court of Common Pleas. Proceedings in partition could have been there instituted by the complainants, and it was not suggested that any legal obstacle could have been interposed to their right of recovery. Perhaps it may disembarrass the case of some complexity, if this be regarded as an application, on the part of the purchasers, to restrain the complainants from prosecuting their proceedings at law for partition. It is not perceived that their claim will be prejudiced by this view. . For although there are cases, in which the Court does not consider itself bound to aid either party, as against the other, where the equities are equal, the rule is here inapplicable. The Court would grant them relief (if at all) to the same extent, and on the same principle, as it will be now administered.

It may be'proper, first, to enquire what was the extent of Willisson’s authority under the letter of 20th January, 1832; supposing both the complainants to be bound bj that letter.

In April, 1822, Dr. Watkins instituted an action of trespass to try the title for these lands, against Willisson, in the Circuit Court of the United States. The defendant adduced no paper title, but relied on his possession. Under the charge of the Judge, a verdict was rendered for the plaintiff, which verdict, after full argument, was set aside by a majority of the' Supreme Court of the United States, at January term, 1830, and a venire facias de novo awarded. Willisson afterwards compromised the case by agreeing to pay Dr. Watkins one thousand dollars.

In reply to Willisson’s letter, informing him of the arrangement of the suit, and asking his opinion as to the disposition of the lands, Dellet writes the letter of 30th January. It is not proposed to comment on all the parts of that letter. This Court concur in opinion with the Circuit Chancellor, that Wil-lisson was thereby" authorized by Dellet to contract for the sale of the land, and to receive the purchase money.- ' But was he authorised to contract for a covenant of warranty? It appears-to the Court that the language of the letter is sufficiently explicit. “Harriet and myself will, at any moment, aid you in the transfer of all our right and title to the Hamburgh land.” In common parlance this is the very definition of a quit claim,as distinguished from a conveyance with warranty. The letter adds “ but think it will be proper to make no warranty.” This, it would seem, left nothing for construction. When it is remembered that both Dellet and Willisson, as well as the purchaser, Whitner, were lawyers, if is difficult to suppose that the extent of the authority was mistaken. It is suggested that other parts of the letter would admit of a different construction. But the Court, do not perceive the discrepancy. Wil-lisson, relying on no other defence than the Statute of Limitations, had conducted the cause of himself and the complainants to a successful issue. He had secured their confidence in hi's skill and fidelity. They were willing to commit to hiS discretion the interests, which, if he had not created, he had contributed, so effectually, to secure. As to the terms of sale; the mode and manner of payment, &c.¡ although hints are offered for his consideration, all is submitted to his better judgment. But Dellet did not require the recent decisions to leach him the uncertainties df litigation, dr the danger of insuring a title to land. The character of his title,- too, was precisely that which, in his situation, he would more readily undertake td transfer than covenant to defend. After presenting the relative advantages of a cash, and credit sale, and providing for a settlement in either contingency, he adds “ thd above hints are' not for the purpose of advising or directing you,” and concludes by an assurance of their readiness, to aid him in the transfer of all their right and title, hut think it will he proper to make no warranty.” It seems to the Court that the "hints” and “injunctions” are plainly distinguishable; and that, if this paper was before the patties when the contract of 30th of March; 1832, was executed, neither the agent nor the purchaser supposed, that the covenant of warranty was within the letter of the instructions.- Whitner must have relied on the personal influence, or individual guarantee of Wil-lisson. If he had filed a bill against the principals for specific performance, including the covenant of warranty, a majority of the Court are very clear that the claim could not have been sustained;

But it is said that Willisson had authority to sell without warranty; thathe has only exceeded his power; that the execution of a power may be good in part, and bad in part; and; that, in many cases, only the excess oí a (power will be void; the residue good; It is then insisted that Dellet must be held responsible to the defendants for his inability to cany into effect the contracts of his agent, to the extent to which the power was good.- The principle on this subject is sufficients ly well stated in Alexander vs. Alexander, (2 Ves. 642,) and also in Sugd. on Powers, 549. Where there is a complete* execution of a power, and something ex abundanti added, Which is improper, there the execution shall be good, and only the excess void ; but, where the boundaries between the' excess and execution are not distinguishable, where they are not precise and apparent, it will be bad. The answer of the-defendant, (Whitner,) states that Willison, in consideration of $10,000, “ covenanted to; execute to5 him1 warranty titles to the' land;” “ that the price of the land was enhanced by the agreement of- Willisson, in behalf of himself and the complainants, hr give'a'general warranty title,” and he submits “that a reasonable abatement should be made on the price agreed-' to be paid for the lands, so far as complainants' interests are concerned, inasmuch as they refuse to give full warranty title.”

Who can undertake to say that the covenant of warranty was merely “something ex abundanti added,” that the execution shall be good, and only the excess void, because the' boundaries are distinguishable, precise, and' definite ? It does not resemble the- case cited from- 9‘ Johns. R., Waters vs. Travis, where a party undertook to sell 439 acres of land, at a* dollar'per acre, and was entitled only to 234 acres; nor to' the illustration in the argument, of an agent selling two horses, who had authority to sell only one. If, in Waters vs. Travis, the land had been sold for a gross sum-; and the value had been enhanced in consequence of a mill seat, a spring, or a gold mine, which was aftenvards found not to be within the boundaries; or if, in the latter instance, the horses had commanded- a- high price as a match, the cases would be nearer parallel. But, as it is- said in- the Attorney General vs. Griffith, (13 Ves. 576,) “there is no principle for reforming the contract. It is all conjecture. The Court can never act witth safety in executing such a proposal.” In Young vs. Nash, (3 Atk. 190,) Lord Chancellor Hardwicke held that the contract must be performed in its entirety, or not at all. “ No 'body can tell,” says he, “what it is that .parties have laid the greatest weight upon, in coming to agreements, and therefore it would be attended with bad consequences, if agreements were to be split, and one part to be decreed and another not.” What was the value at which the .parties rated .a conveyance •of the land without warranty"? What price was -put by them on the covenant of warranty! What sum could the complainants have demanded from Willisson as their share of the pur■chase money! It cannot be doubted that a contract for the land, without warranty, was a contract which Whitner and Willison never made; that Whitner never agreed to pay 410,000 for such a title; and if the complainants, relying on the agreement, had filed a bill for specific performance, tendering a title without warranty, the claim would be dismissed. If their bill had insisted on reforming the contract, according t® the power conferred, and on a reasonable abatement of the price, it can scarcely be denied that a decree in their favor would impose, on the purchaser, an arrangement which he had never made, which his mind had never contemplated, and to which he would, perhaps, have never assented. Agreements, between persons capable of contracting, should be mutually obligatory, or not at all. The agent of the complainants made no contract for a sale without warranty. Be and Whitner may very well have differed as to the value of such title. The complainants may have been hound to receive what Willisson agreed to take for a transfer of their right and title without warranty;; but, as he made no such agreement, Dellet cannot now be required to indemnify the ■defendant for not transferring that, which he, the defendant, ■never agreed to purchase, and for which he could not be compelled to pay.

Then is the defendant, Starke, entitled to reimbursement for the impro vement to the land, made, as he admits, since he had notice of the complainants’ claims? Perhaps it maybe well, first, to regard him as vested with all Willisson’s rigths, and then to enquire whether a tenant in common is entitled to compensation for improvements made on the land of which he was the exclusive occupant, but aware that he was not the exclusive proprietor. In Green vs. Biddle, (8 Wheat. 69,) the relative rights of the owner and adverse occupant of land are discussed. The rule of the English Court, of Chancery is there fully recognized, which allows an account of rents and profits, in all cases, from the time the title accrued, provided that it do not exceed six years, unless under special circumstances. In the class of excepted cases, the account is confined to the time of filing the bill. In the case cited, the Court say “upon the whole, then, we take it to be perfectly clear, that, according to the common law, the principles of equity, and even those of the civil law, the successful claimant of land is entitled to. an account of the mesne profits received by the occupant, from some period prior to the judg-> ment of eviction, or decree.” That case arose under the “occupying-claimant”law of Kentucky, by which the owner of the land was compelled to. pay, to a certain extent, the assessed value of the improvements made on the land by the bona fide occupant, even after notice of an adverse title. It became necessary to consider how far that law could be vindicated on principle, or from precedent. The Court say, “the rule in Coulter's case, (5. C, 30,) is that meliorations of the property, (which, necessarily, mean valuable and lasting improvements,) made at the expense of the occupant of the land, shall be set off against the legal claim, of the proprietor, for profits which have accrued to the occupant during his possession. But, by this Act, the occupant is entitled to the “value of the improvements, to whatever extent they may exceed that o.f the profits; not on the ground of set off against the profits, but as a substantive demand. If the principle which this law asserts, has. p. precedent to warrant it, we can truly say, that we have not met with it.” In another part of the judgment, it is said “nothing can be more clear, upon principles of law and reason, than that a law which clogs the owner’s recovery of his land by conditions and restrictions tending to diminish the value and amount of the thing recovered, impairs his right to, and interest in the property. If there be no remedy to recover the possession, the law necessarily presumes a want of right to it. If the remedy afforded he qualified and restrained hy conditions of any kind, the right of the oionev may indeed subsist, and he acknowledged, hut it is impaired and rendered insecure, according to the nature and extent of such restrictions.”

Recognizing the soundness of these principles, the Court think that, as a general rule, even in the case of a bona fide occupant, who supposes himself the rightful, proprietor, Chancery will not sustain a claim for the value of improvements beyond the rents and profits. And it is held also that the bona fides of his possession ceases so soon as he has notice of the adverse title. It is difficult to prevent the application of the rules to the case of a co-tenant. Although he has an admitted interest in the land, yet he is aware that this interest is limited and not exclusive. Every facility is afforded by the laws for making partition, and it is his own fault if he erects valuable improvements.before his portion has been ascertained and set off to him. But, further, he has no right, unnecessarily, to “clog the recovery” of his co-tenant, and, by changing the character of the premises, interpose obstacles to a partition, which did not originally exist. By the Act of 1791, if the land cannot be fairly and equally divided, the Commissioners may allot the whole to one of the co-tenants on payment of a sum of money, or may recommend a sale. Now, if the tenant in possession may make valuable improvements on a part of the land, it is in his power effectually to prevent a partition, and compel his co-tenant to buy, or sell the whole, contrary, perhaps, both to his interests and wishes. Besides, as was said by Chancellor Kent, in Moore vs. Cable, (1 J. C. R. 388,) “ to make the allowance would be compelling the owner to have his lands cleared, and to pay for clearing them, whether he consented to it or not. The precedent would be liable to abuse.” The Court has found no authority for the claim of the defendant, except the case of Swan vs. Swan, cited at the bar, from (3 Exc. Rep. 443; 8 Price, 518,) and, on reference to the point decided in that cese, it will be found that it was “ referred to the Deputy Remembrancer to take an account of what had been expended necessarily, or with the concurrence of the plaintiff.” The Court is not prepared to go further. And the decision in ex parte Palmer, (2 Hill, C. R. 217,) is ralheran affirmance of the restrictive policy of the Courts in questions of compensation for improvements.

These views have been rendered more satisfactory to my own mind, from having accidentally met, since the argument of the cause, and indeed since the opinion was thus far written, with the decree of Chancellor Harper, in an unpublished case, Thomson et al. vs. Bostick et al., affirmed by the Court of Appeals, at Columbia, May Term, 1831. The bill was filed, by one tenant in common, against the others in possession, for rent. In the account, the Commissioner had credited the defendant with improvements, clearing the land, putting up a cotton screw, &c., to which the complainant excepted. The Chancellor decided that the defendants were chargeable with the rent of the land, estimated as it was when they took possession, and that they were not entitled to credit for the improvements. In the course of his observations he says “one man has no right to improve the land of another at the owner’s expense. But if the tenant out of possession is not to be charged for a share of the improvements, it would be plainly inequitable that he should be allowed to claim the enhanced rent produced by means of such improvements. If the tenant in possession should build a mansion on the land, or a mill, or manufacto-ry, it would be enough that the co-tenant should take his share of the land increased in value by these improvements, without charging the tenant, at whose expense they were constructed, with rent for the time they were used by him, T o apply to the present case. If the premises were improved by the clearing and fencing of new land, or by erecting the cotton screio, defendants have no right to charge for that. They had no right to make improvements at their co-tenants expenser without their consent. But they are not to be charged with the rent of the land cleared by them, because the premises were rendered capable of producing that rent by means of their improvement.” The Court of Appeals reserved their opinion as to the liability of the defendants for the enhanced rent, because the complainants did not appeal; in all other respects, the judgment of the Chancellor was affirmed.

But there is a different view, in which the claim of the defendant may be regarded with more favor, and the Court are very ready to give him the benefit of it. A class of cases exists, in which he who takes possession of lands, under a prima facie legal title, and makes valuable and lasting improvements, which must pass, with the freehold, to the party asserting his-paramount right, is deemed, by the established rules of Chancery, entitled to compensation. Such is the case of a vendee,, who takes possession of land, under an agreement for a sale. So also of a mortgagee in possession, where the Court will not ■permit a redemption without payment for necessary improvements. If these improvements had been made by Whitneiy relying on the authority of Willisson, and before notice from the complainants, I should think him strictly within the protection of the rule. It is admitted, however, that the improvements were not made until after notice of the want of authority in Willison, and of the intention of the complainants to assert their rights. But, it seems, the claim was always accompanied by an assurance that the defendant might retáih tíié land, if he would pay to the complainants their moiety of the purchase money with interest. This offer is repeated in the bill, and again reiterated, by the counsel of the complainants,in the course of the argument here: It is impossible to reconcile the acts of the defendant with ordinary prudence, but on this consideration, and his confident expectation of becoming the ultimate owner, and his conviction that the substantial object of the litigation was to determine the complainants’ right to recover from him a moiety of the purchase money: This Court agree with the presiding Chancellor that, in the state of the pleadings, it would not have been proper to decree an execution of this arrangement. But it would be inequitable, under the circumstances, to allow to the complainants the gratuitous benefit of these improvements. The measure of the defendants’ equity can be more properly fixed when the enquiry to be directed shall have been satisfied.

Gregg, for the motion.-

It is ordered and decreed, that the decree of the Circuit Court be affirmed.

It is further ordered, that it be referred to the Commissioner to enquire and report what improvements on the land have been made by the defendants, and at what time; also, the extent to which the value of the premises has been enhanced in consequence of those improvements. All further questions in relation thereto being reserved until the coming in of the report and the return of the Commissioners in partition.

Johnson, Ch., concurred.-  