
    The Lessee of Davis v. Thomas Powell.
    A defendant, holding possession of premises under claim of title, will be allowed, under the occupying claimant law, as well for improvements made by him before his title commenced as for those made after.
    This case was reserved from Logan county to determine questions arising upon an assessment for improvements under the occupying claimant law.
    The facts were agreed as follows:
    It is agreed that the defendant purchased the lands recovered in the action of ejectment from Samuel Newell, as agent of Bur-net and Spencer, in March, 1820, and paid $217, took a title bond and wont into possession, and has occupied it ever since. Burnet and Spencer had no color of title, and the sale by Newell arose-from a misapprehension as to the identity of the land sold.
    In 1831, one Isaac Shingledeeker exhibited to defendant a patent issued to the lessor of the plaintiff, and claimed to be the-owner of the premises. Shingledeeker entered the land for taxation in the auditor’s office in his own name, in 1831, and then rented the premises to the defendant, who occupied under the lease, and'paid rent to Shingledeeker one year. In 1833 and 1834;, the taxes were not paid, and on December 29, 1S34, the land was-sold for taxes, as the property of Shingledeeker, and purchased by the defendant, who received a deed from the county auditor, February 4, 1837. In 1836, the contract with Newell was rescinded, the purchase money was repaid, or secured to the acceptance of the defendant, and the title bond surrendered.
    *The defendant commenced his improvements immediately after the purchase from Newell, and continued to make improvements up to the commencement of the action of ejectment in 1841.
    Judgment was rendered against the defendant in the action of ejectment, at the Juno term of the Supreme Court in this county,. A. D. 1843, and notice was then given by the defendant that he-claimed the value of his improvements, under the occupying claimant law.
    In April, A. D. 1844, a writ issued to the sheriff, commanding-him to assess the value of the improvements under the occupying-claimant law.
    At the June term, a. d. 1844, of the Supreme Court, the sheriff reported that he had ascertained the value of the improvements, by the verdict of a jury, in the manner required by law, and that they have assessed the same, over and above the rents and profits, to $900, which includes all the improvements on the premises-made prior to the commencement of the action of ejectment.
    The defendant set up no title on the trial of the action of ejectment, except his tax title, which accrued in 1834.
    The following exceptions were filed:
    “ And the said plaintiff now comes and excepts to the assessment - of the value of the improvements made on said premises under the • occupying claimant law, for the following reasons, to wit:
    “1. Because the improvements were made before the title accrued under which the defendant occupied the premises, and before a patent issued from the President of the United States.
    
      “2. Because the improvements are estimated at their cost, and not with reference to the increased value which they add 'to the premises.
    “ 3. Because the ‘ cabins,’ valued at $125, are not lasting and valuable improvements.
    “ 4. Because, in estimating the net annual value of the rents and profits of said lands, ‘the grain and grass now growing on said lands are not included.’
    *“ 5. Because the improvements are appraised too high, and the value of the land too low, and the return of the jury is, in other respects, informal, incorrect, and insufficient. For all of which we moved the court to set the same aside and order a new one.”
    B. Stanton, for the plaintiff:
    The defendant obtained no title by his purchase from Newell, as the agent of Burnet, by virtue of which he could claim compensation for improvements under the occupying claimant law, because:
    1. Burnet had no color of title to the premises.
    2. If he had acquired such title he relinquished it by the surrender of his title and possession, and by accepting the purchase money which was refunded by Newell.
    3. By the surrender of his claim, and the rescission of the contract with Newell, ho accepted the amount paid by Newell in satisfaction for all claim for improvements, or waived his right to ■demand such compensation.
    4. His acceptance of the lease from Shingledecker, who claimed under the plaintiff’s title, was an abandonment of his possession under the purchase from Newell, and a waiver of his claim to improvements under the occupying claimant law.
    5. The rescission of the contract with Newell, and the surrender • of his possession under it, placed the parties in the situation they would have been in if no such contract had ever been entered into.
    The defendant, therefore, was a mere trespasser, without color of title, up to the tax sale in 1835. The question, then, for the consideration of the court is, whether a party whose possession originated in a trespass, but who afterward acquires a defective title to the premises, can, by virtue of such title, claim compon.sation for improvements made before his title accrued.
    Section 1 of the act “for the relief of occupying claimants of land,” Swan’s Stat. 605, provides that in all cases *where any occupying claimant, being in quiet possession of lands or tenements, for which he can show such a title as is therein described, shall not be evicted or turned out of possession by any person having a better title, until the occupying claimant shall be fully paid the value of all lasting and valuable improvements, etc.
    It is submitted with confidence that the true construction of this statute is, that when any person takes possession of lands by virtue of any such title, and makes improvements in good faith, believing his title to be good, he shall not be turned out of possession without being paid for his improvements.
    The statute was not passed for the protection of willful trespassers.
    It was not intended for the protection of those who were so negligent in their dealings as to omit the usual and ordinary means of ascertaining the character of the titles which they purchased.
    But it was intended to protect those who were so unfortunate as to lose their land on account of defective title, after having used ■due diligence to ascertain its character.
    The legislature was well aware that there Were many titles in the state that seemed to be perfect, from the face of the records, which were, nevertheless, insufficient and defective. Tips law, therefore, was intended for the protection of those who had sustained serious losses, without any negligence or misconduct on their part. The very gist of the occupying claimant’s case is, that he made his improvements in good faith, relying upon the sufficiency of his title, and •expecting to enjoy the benefit of them himself. But it is clear that no such claim can be set up for improvements made before his title accrued.
    This construction of the statute is adopted by Judge Collet, in delivering the opinion of the court in Longworth et al. v. Wolfington et al., 6 Ohio, 10. He says, “ The law of this state is framed to cover every case where a party is evicted from the possession of' lands which he had improved, in the faith that he was the owner. In this state, lasting and valuable improvement's have frequently been made by persons in ^possession, when the title was in another, and when the person making the improvements believed the land to be his own.”
    Anj- other construction of the statute involves this absurdity; Acts which must be admitted to have been tortious and illegal when they were committed, and which would have subjected the party to both a civil and criminal prosecution, are, by the magic of a title which,is absolutely worthless for all other purposes, made very praiseworthy and meritorious acts, for which the owner of the land must pay the trespasser. The only adjudged case that can be found that looks like sustaining the defendant, is Shaler’s Lessee v. Magin, 1 Ohio, 236.
    The first remark 1 have to make upon this case is, that it is a circuit deci.sion, and is not binding on this court as authority.
    2. The court expressly say they do not hold that an occupying claimant “must,” in all cases, recover for improvements made before his title accruod, but that ho ought to do so in some cases. The court do not profess, therefore, to settle any principle, or establish any rule on the subject.
    3. It does not appear from the report of the case, whether the entry under which the improvements were made, was withdrawn by the defendant, or by some grantor of his, over whom he had no control. It seems to me the court will not presume that the defendant in that case withdrew the entry himself, and that the court gave him compensati&n for improvements made under a title which he had voluntarily abandoned. If the defendant in that case was (as is most prqbable), a purchaser from a party in whose name, and for whose use the original entry was made, and the entry was withdratvn-by the original owner without the consent of his grantee, then it would be unjust to refuse him compensation for improvements made “ in the faith that he was the owner of the land.”
    But, in this case, if the defendant had any color of title before the tax sale, which the court suppose gave him any sort of equitable claim to compensation for improvements, he had surrendered the possession which he held under it, and took a lease, and occupied the premises under it, from a party who ^claimed under the plaintiff’s title. This was an abandonment of all claim for improvements made prior to that time. His subsequent possession is not continuance of the possession which he acquired by virtue of the pretended purchase from Newell, but a new possession, which commenced with his lease from Shingledeeker.
    This possession, too, was of a character which excluded all idea of compensation for improvements under the occupying claimant law. His atonement to Shingledeeker was an acknowledgment of the plaintiff’s title, and his possession from that time to the tax sale was the plaintiff’s possession, and not inconsistent with, or adverso to his title. It would indeed be strange, if a tenant could claim that his possession during the tenancy was adverse to his-landlord, and compel him to pay for improvements made during the term.
    Yet this is the claim set up by the defendant in this case. The-difficulty in which the defendant was involved by the purchase of a defective title from Newell, ought not to influence the decision of this cause; it has long since been adjusted and settled by the parties themselves, to their mutual satisfaction, without calling for the interposition of this or any other court. And if the defendant in this case can claim compensation for his improvements, we car, not see any other principle upon which it can rest, than the broad ground that a willful trespasser who can succeed in patching up a. defective title, shall be entitled to the benefit of his own wrong.
    R. T. Sprague, for defendant:
    The state of facts, in the absence of any circumstances tending to explain or impeach the character of the defendant’s possession prior to his purchase of tax sale, would, as we conceive, entitle him, to compensation under the statute, for all lasting and valuable improvements made upon the premises, prior to the service of the-declaration in ejectment.
    The object of the statute is equitable, and, for the purpose of adjusting the equitable claims of parties peculiarly circumstanced, *may justly claim a liberal construction. Longworth et al. v. Wolfington et al., 6 Ohio, 9. The design of the statute seems to-be, to protect the interest of those who in good faith have obtained possession of, and made lasting and valuable improvements upon the land, to secure to them some compensation for the labor and money bestowed in improving and enhancing the value of lands-from which they are about to be evicted by another, who, having established a paramount and superior title, is about to enter and enjoy the product of their toils. Henry v. Doctor, 9 Ohio, 49. At the same time, the legislature is equally careful to protect the rights-of the real owners, or successful claimants of lands upon which others have entered and made improvements. Section 1 of the act,. Swan’s Stat. 605, prescribes limits within which the occupying claimant must establish himself, before the benefit of this statute can be made available. Having brought himself within these limits, and established the requisite title, the same section enacts that he “shall not be evicted, or turned out of possession, by any person or persons who shall set up and prove an adverse and better title to said lands, until said occupying claimant, his, her, or their heirs, shall be fully paid the value of all lasting and valuable improvements made on said land by such occupying claimant, or by the person or persons under whom he, she, or they, may hold the same, previous to receiving actual notice by the commencement of suit on such adverse claim,” etc. And section 4 of the same act, in prescribing the duty of jurors drawn to assess the value of such improvements, enacts “that the jury shall assess the value of all lasting and valuable improvements made, as aforesaid, on the lands in question, previous to the party receiving actual notice, as aforesaid, of such adverse claim.”
    There is no pretense but that Powell obtained possession of the lands in 1820, by means of a bona fide purchase from Burnet and Spencer, paid his money, and received a title bond, without the 'least shadow of collusion, or fraud, and that all the improvements upon the land were made by him in good faith. *Would not equity then require the plaintiff to compensate the defendant for improvements he has so made, which so greatly enhance the value of the land which the plaintiff has wrested from him, and is now about to appropriate to his own use? The case of Lessee of Shaler v. Magin, 2 Ohio, 237, fully sustains this view of the present case. Section 1 of the statute of 1820, 2 Chase’s Stat. 1164, under which that caso was decided, is nearly verbatim the present statute; and the court say, “we discover nothing in the statute that limits the claim of the occupying claimant to a compensation ior such improvements as were made after the commencement of his title. The statute is in the present tense,” etc. Again : “There is nothing in the law that excludes a right to recover pay for improvements made by the tenant, or the person under whom he claims, at any time before the commencement of the suit. It ■sometimes happens that persons seat themselves on vacant lands, make valuable improvements thereon, and afterward locate it. • In ■such a case, if in consequence of a delect in their entry, a junior ■entry should prevail, we can not see anything in the law, or in the policy on which it is founded, that entitles the successful claimant to take the improvements, without making compensation to the tenant.” If this decision is adhered to, and we have no doubt it will be, there is no necessity for reverting to any further facts in the'case.
    
      But further, we claim that the defendant had a sufficient title, prior to his purchase at tax sale, to entitle him to compensation for the improvements he had made, prior to that time, under the ■statute for the relief of occupying claimants. The defendant purchased the land in question of Newell, as the agent of Burnet and Spencer, in March, 1820, paid said Newell, as such agent, $217, took a title bond from him, and immediate possession, which possession he continued uninterrupted, until after his purchase at tax sale. The title bond was not surrendered until some time in the year 1836, and from aught that appears, until after he was entitled to a •deed of the premises under his purchase at tax salo. Powell was then in quiet possession of, and held the land in question, by ■*bond from, and under Burnet and Spencer, who, by their agent, Newell, claimed title from March 1820, until some time in the year 1836. But counsel assumes, that “Burnet and Spencer did not claim title to the premises in the manner prescribed by the statute, for the relief of occupying claimants.” In what manner, then, did they claim title? True, the character of the title claimed by them does not specifically appear from the facts as submitted. Whether they claimed as original patentees, or by deed from the original patentee, or from some one claiming'under the original patentee, or by devise, or descent, does not appear; but from the circumstances, as disclosed by the facts submitted, is not the conclusion irresistible, that Burnet and Spencer, by their agent, did claim, at the time Powell purchased, in 1820, that they were possessed of “a plain and connected title in law, or equity, derived from the records of some public office?” Any other presumption would involve the absurdity, that a party has paid his monoyin consideration of a bond, which the obligors, at that time, avowed their inability to exeente.
    There is no pretense but that Nowell was the legally authorized agent of Burnet and Spencer, and acted as such in this transaction in good faith; nor is it denied but that Powell purchased the land, paid his money, took a title bond and possession, and made his improvements in good faith, with the confident expectation that he would- receive a valid and bona fide deed in foe simple, from Burnet and Spencer, as soon as he should pay tho balance of the purchase money. Will it be presumed that Burnet and Spencer, by their agent, Newell, claimed any other than such a title to .the premises, as would enable them to comoly with the conditions of their sale and bond to Powell? The statute is sufficient^’ broad to embrace every species of valid title by which a party can claim-to hold real estate in Ohio.
    William Lawrence, for plaintiff, in reply.
    The return of the jury allows the defendant compensation for improvements made at two periods; first, from 1820 to *1834, during which time he attorned to Shinglcdecker, and consequently could not, alter that, be considered as an adverse claimant; and, second, from the date of his tax title, in 1834, up to the time of service of notice in the ejectment suit. Because of the allowance-for improvements made during tbo first period, this motion is made to set aside the return.
    Its decision depends upon a proper construction of the occupying claimant law. By the English law, and the common law of this country, the purchaser of land who was evicted by a superior title, could not recover for improvements. As to him the vxi\<i caveat emptor applied; 2 Kent, 334. Frear v. Hardenburg, 5 Johns. 272; Miller v. Watson, 4 Wend. 267. To remedy this defect of the common law our occupying claimant law was enacted for the benefit of bona fide purchasers of land, supposing they had good title. 6 Ohio, 10.
    The law of 1831, Swan’s Stat. 605, .protects five classes of claimants:
    1. Those who “can show a plain and connected title in law or equity, derived from the records of some public office.”
    2. Those who “being in quiet possession of, and holding the same by deed, devise, descent, contract, bond or agreement, from or under any person claiming title, as aforesaid, derived from the-records," etc.
    3. Those “holding the same under sale on execution, against, any person claiming title, as aforesaid, derived from the records.” etc.
    4. Those “ holding any land under any sale for taxes.”
    5. Those “ holding the same undor sale and conveyance made-by executors, administrators, guardians, or by any other person or persons, in pursuance of any order of court or decree in chancery.”
    Was the defendant, prior to December 29, 1834, an occupying-claimant within these provisions? To which of these classes docs-he belong? Not cortaiuly to the first. He had-not “a plain and connected title,” in law or equity, “derived from the records of ■some public office.” Legal and equitable titles are *oach protected. A legal title is the means whereby the owner of lands ■hath the just possession of his property; 2 Blackf. 196. Burnet and Spencer, having no color of title, could not authorize Newell to make a legal title, and consequently the defendant had no legal title. But to be protected by the statute, his title must be “derived from the records of some public office.” The title bond was not a title capable of being made a record in a public office. There is no law authorizing tille bonds to be recorded by county recorders; ii recorded they are not notice. The title bond gave defendant no equitable title to the land. An ■equitable title is a “ right in land which, not having the properties of a legal estate, requires the aid of a court of chancery to make it available.” Chance^ could not compel a specific performance of the title bond against Burnet and Spencer; having no color of title, they could not convey an equity in the land.
    The second class of claimants protected by the statute are those “holding lands by deed, devise, descent, contract, bond, or agreement,” under the first; and as it is not protended that Burnet and Spencer had or claimed any title, defendant is not within this class.
    As to the third and fifth classes, it is not pretended that defendant is within their provisions. It is conceded that his tax title brings him within the fourth class as to the improvements made since it accrued. As to the improvements prior to December 29, 1834, the defendant is not therefore an occupying claimant within the letter of the statute; nor is he within its spirit or reason.
    In construing laws, courts will look at the effects and consequences of their construction to determine the intention of the legislature. What would be the effect of a decision that defendant should receive compensation for improvements made before his title accrued? From anything that appears in the agreed ■statement, the land may have been entered an.d patented before or after the time when defendant first took possession. If after, then the patentee must be kept out of possession until he pays for improvements made by a squatter., *The title of the statute under-consideration is “an act for the relief of occupying claimants of land;” such a decision would make it “an act for the relief of squatters.” It was intended, not for occupants alone, but for claimants of land. ■ Squatters are occupants, but not claimants of land, they are not therefore protected by it. The manner of claiming is pointed out by the statute, and the squatter is excluded from its provisions. Any other construction would invite hordes of trespassers on the government land ; would legalize plunder, and erect a mighty barrier to their sale. A principle so wholly subversive of public policy can never be tolerated. The principle is the same in this case. Powell is therefore a trespasser, seeking to “take advantage of his own wrong,” and is not. within the reason or spirit of the statute.
    To decide that an occupying claimant is entitled to pay for improvements made before bis title accrued, would also involve the-absurdity that a title might accrue before land was entered or patented. If a title might accrue, it might become the subject of litigation and would be controlled by the statuto of limitations,, which is in direct opposition to the authorities. Lessee of Wallace v. Miner, 6 Ohio 366, 7 Ohio 249; Lessee of Thompson’s heirs v. Gotham, 9 Ohio 170. The case of Lessee of Shaler v. Magin, 2 Ohio 236, has been already sufficiently discussed.
   Read, J.

It is contended by counsel for the plaintiff that, under the occupying claimant law, the defendant.is not entitled to payment for valuable and lasting improvements made upon the premises prior to December 29, 1834, because, up to that period from the year 1820, he had occupied under no color of title whatever derived in the manner specified in the statute.

This presents the simple question whether, upon a fair construction of the occupying claimant law, a person in possession of land under no color of title whatever, and subsequently acquiring such title as brings him within the statute, is, upon *eviction by superior title, entitled to compensation for such valuable-improvements as he may have made upon the land whilst in-possession, without color of title, prior to the acquisition of such title-as confers upon him the benefit of' the statute? Is the occupying claimant entitled only to compensation for such improvements as he may put upon the premises whilst actually in possession under such title as the statute contemplates; or, will the lact of his being in such possession at the lime of the rendition of the judgment entitle him to compensation for all improvements he may have put upon the premises?

The equity of the statuto embraces all improvements made in the honest belief of ownership, if, at the time’of rendition of judgment, the occupant is in possession under such title as brings him within the meaning of the statute. If such a state of facts exist as to call the statute into action, it never stops until it has worked out complete equity and justice, and embraced the entire improvements, beneficial to the successful claimant, and honestly made. Any other construction would permit an^honest purchaser of land, buying irom one, without color of title, who sells from mistaken belief o1 ownership, to be swept out of the hard toil of years expended in improvements made for the provision of his family or the repose of age.

The statute is to be so construed, whenever a case comes within its letter, that the person receiving the benefits anS advantages of improvements shall make compensation. It rests on the broadest equity; and in the language oi the court in Longworth v. Wolfington, 6 Ohio 10, may justly claim a liberal construction. The court in that case say, the law of this state is framed to cover every case where a party is evicted from the possession of lands which he had improved in the faith that he was the owner.

In the case of the Lessee of Shaler v. Magin, 2 Ohio 236, the court say, wo discover nothing in the statute that limits the claim of the occupying claimant to a compensation for such improvements as were made after the commencement *of his title. The statute is in the present tense, “when any occupying claimant being in quiet possession of land,” etc. The exhibition of title is at the rendition of judgment. There is nothing in the law that excludes a right to receive pay for improvements made by the tenant or the person under whom he claims, at any time before the commencement of the suit. '

Thus our own court has put a construction upon this statute which embraces this ease, and authorizes a compensation for improvements from the time the delendant went into possession in 1820. We adhere to these decisions as a correct exposition of the statute.

The motion to set aside the assessment of the jury is overruled, and it is ordered that the amount, so assessed, bo disposed of and paid according to the provisions of the statute for the relief of occupying claimants. Judgment entered accordingly.  