
    Benjamin Russell versus George Blake.
    A tenant made improvements on the land after an action was commenced against nim to recover it, and in which judgment was afterwards obtained against him, and it was held, in a subsequent action of trespass for the mesne profits, that he was not entitled to a deduction for the improvements.
    a mortgagee cannot claim an allowance for improvements made by him, but only for keeping the mortgaged premises in repair.
    
    Trespass for mesne profits. The only question was, whether the defendant was entitled to any allowance out of the rents and profits, on account of a well which he repaired by digging it deeper, and stoning it anew, whilst the premises were in his possession. This work was done in the autumn of 1819. The action of the plaintiff against the defendant for the recovery of the land was commenced on the 14th of June, 1819, and he obtained judgment for his seisin on the 2d of November, 1819, and took possession, by force of an habere facias, on the 2d of February, 1820.
    The cause was tried at October term 1822, before Jackson J., who instructed the jury, that the defendant was not entitled to any allowance on account of the repairs, and the verdict was returned accordingly. Whereupon the defendant moved for a new trial on account of this direction.
    The Chief Justice, at the opening of the argument, remarked that in a late case in Suffolk it had been held, that a mortgagee in possession could not have an allowance for making any thing new upon the mortgaged premises, but only for keeping them in repair.
    
      Peabody for the defendant.
    The mortgagee knows that his estate is defeasible. The defendant thought he had a good title. By the old practice in ejectment, the plaintiff recovered the actual damages, but after the introduction of the fictitious action of ejectment it was found convenient to take judgment for nominal damages and to bring an action of trespass for mesne profits. Running. Ejectm. 438 ; Benson v. Matsdorf, 2 Johns. R. 370. This course of proceeding was introduced in order to do justice to the parties. The actual rents and profits are not the measure of damages. Goodtitle v. Tombs, 3 Wils. 121. The action for mesne profits is an equitable action, in which every equitable defence may be made. Murray v. Gouverneur, 2 Johns. Cas. 441. Assumpsit will lie for mesne profits; Cummings v. Noyes, 10 Mass. R. 433 ; which shows that the plaintiff is to recover only what is equitably due. [Parker C. J. That was a peculiar case. Noyes entered under a judgment which was afterwaros reversed.] The tenant here had a good title, as he thought, which he determined to defend, and so far the cases are similar. A good title under a judgment is no better than a good title by a different mode. The repairs were done before the judgment was recovered in the first action, and the defendant has a right to argue "that they were necessary. There is nothing in the character of an action of trespass to render it impossible to set off the repairs against the profits, and as the plaintiff has the benefit of them, the Court will suffer them to go in mitigation of damages. Prescott v. Wright, 6 Mass. R. 23.
    
      P. O. Thacher, for the plaintiff,
    cited Van Alen v. Rogers, 1 Johns. Cas. 281 ; Adams on Ejectm. (Am. ed.) 335, and note.
    The opinion of the Court was delivered at the sittings after this term, as drawn up by
    
      
      
        Saunders v. Frost, 5 Pick. 295 ; Moore v. Cable, 1 Johns. Ch. R. 385, Godfrey v. Watson, 3 Atk. 517 ; Bonithon v. Hockmore, 1 Vern. 336 ; per Ld Alvanley, 4 Ves. 480 ; Robinson v. Ridley, 6 Madd. 2; 3 Powell on Mortg (Rand’s ed.) 956, n. (Q,). The value of lasting improvements has sometimes been allowed to mortgagees in England. Exton v. Greaves, 1 Vern. 138 ; Talbot v. Braddill, id. 183, note; 3 Powell on Mortg. (Rand’s ed.) 956, n. (Q), So in this country; see Conway v. Alexander, 7 Cranch, 218 ; Ford v. Philpot 5 Harr. & Johns. 312.
    
    
      
       S. P. Buntin v. Duchane, 1 Blackford, 57.
    
    
      
      
        Coulter's case, 5 Co. 31 ; Green v. Biddle, 8 Wheat. 1 ; Moore v Cable, Johns. Ch. R. 385 ; Jackson v. Loomis, 4 Cowen, 168 ; Saunders v Frost 5 Pick. 259 ; Gibson v. Crchore, 5 Pick. 146.
    
   Parker C. J.

A disseisor against whom a recovery is had in a writ of entry, has no remedy for any expenditures upon the land, even for rendering it more valuable. Whatever he does is in his own wrong, and when he is obliged by law to yield the possession, he must surrender the land in "ts improved state, if he has improved it.

The St. 1807, c. 75, called the Betterment Law, has altered the common law in this respect, but those who would avail themselves of its privileges must bring themselves within its provisions, and must proceed in the mode which it has directed. The • defendant in the present action would avail himself of the provisions of that law, without having submitted, in the action which tried the right of possession, to the rules prescribed by the statute.

There may be cases in which a defendant in an action of trespass for mesne profits may have an allowance for expenses incurred in maintaining the tenements in a condition to yield a profit ; for it is the net rents and profits only which the plaintiff ought to recover. Keeping up fences to preserve the grass for mowing, labor upon the land to make it productive, &c., would probably be deducted from the gross amount of profits ; but new erections, or changing the character of the soil, are not of this description. The deduction claimed by the defendant in this action is for repairing a well, digging "t deeper, &c. This cannot be allowed, for it is altering and making anew the well, which if the defendant chose to do, it must be at his own cost, especially as he incurred this expense after the action, in which the possession was claimed of him, was commenced. He ought to have surrendered the possession instead of retaining it, and he has no claim in law or equity to a reimbursement of expense which he thus voluntarily incurred.

Judgment according to the verdict,* 
      
      
        Frear v. Hardenbergh, 5 Johns. R. 272. In this case the party claiming for improvements entered upon the land, knowing that it was not his own, and he was held not entitled to recover for them. So in Strike v. M‘Donald,
      
      2 Harr. & Gill, 191, the claimant for improvements was held not entitled to avail himself of the value of them, because he had made them, being con scious of a defect in his title to the estate on which they were made.
      Where a bond fide possessor of land has made valuable and lasting improvements upon it, the value of the improvements thus made in good faith have been allowed to the extent of the rents and profits claimed by the plain tiffs in trespass for mesne profits. Hylton v. Browne, Circ. Court, April 1808 Wharton’s Dig. tit. Ejectment, pl. 74 ; Marie v. Semple, Addison, 215 ; Dormer v. Fortescue, 3 Atk. 134 ; Jackson v. Loomis, 4 Cowen, 168. See Swan v Swan, 8 Price, 518. It was held in Daquin v. Coison, 20 Martin’s Louis. R. 615 to 620, that a possessor is not necessarily such maid fide, from the time a suit is commenced, for he still may have a confidence in the goodness of his title.
      See further on this subject, 2 Kent’s Com. (2d ed.), 334 to 338; Steams an Real Actions, (2d ed.), 374 ; 2 Amer. Jurist, 294.
     