
    * Ann Bacon versus John Callender.
    The provisions of the 3d section of the statute of 1807, c. 74, called The Limitation and Settlement Act, extend to the case where a tenant in a real action claims to hold under a title which proves defective, as well as where he holds by virtue of a possession and improvement only.
    Entry sur disseisin in the post, in which the demandant demands six undivided seventieth parts of a messuage and land in Boston; and she counts on her own seisin within thirty years, and on a dis seisin by one Lemuel Cox, after which the tenant entered.
    The action was tried upon the general issue, at the last November term in this county; and, before a verdict was taken, the following motions were filed, viz.: —
    “ The said Callender avers that he, and the persons under whom he claims to hold the demanded premises, have had the same in actual possession for the term of six years and more before the commencement of this action; and he now requests and moves the court, here, that the jury, if they find a verdict for the demandant, shall also inquire, and by their verdict ascertain, the increased value of the premises at the time of the trial, by virtue of the buildings and improvements made by said Callender, and those under whom he claims, according to the form of the statute in such case made and provided.”
    “ And the said Ann Bacon requires that the jury shall by their verdict also ascertain what the value of the demanded premises would have been, had no buildings or improvements been made by said Callender, and those under whom he claims ; saving the question, whether the said Callender has a right, in this action, to have the increased value of the demanded premises ascertained by the jury under the said statute.”
    The statute upon which these motions were grounded, was that of 1807, c. 74, which passed March 2, 1808, after the commencement of the present action.
    The jury found the issue for the demandant; and they also found the value of the premises without the improvements made by the tenant and those under whom he claims; and likewise the increased value by reason of those improvements.
    [ * 304 ] * The cause stood continued for a hearing upon the question saved as aforesaid by the demandant in her motion.
    
      The solicitor-general, of counsel for the demandant, now moved for a new trial, because the jury had in their verdict found the in creased value, &c whereas the tenant, and those under whom he claims, had not claimed to hold the demanded premises by virtue of a possession and improvement thereof, but had claimed the same under the same title under which the demandant claims to hold them, viz., the deed of one William Lowder; and therefore the jury had no legal authority, under the statute, to inquire into the value of the premises, whether improved or unimproved.
    But the Court observed that, if his position was correct, this extrajudicial finding of the jury was no cause for a new trial; as it must be considered as surplusage, the jury having found the issue, which depended on facts wholly unconnected with the value of the premises, whether that value was increased by the tenant’s improvements or not; and that, on this part of the verdict, judgment might be entered; and if the case was not within the statute, a writ of habere facias seisinam might be awarded.
    
      The solicitor-general then abandoned his motion for a new trial, and moved for judgment on the finding of the jury, and that the demandant might have her writ of seizin.
    In support of this motion, he contended that the provision of the statute on which the tenant’s application was bottomed, was never intended by the legislature to extend to cases where a tenant claims under a title supposed at the time to be sufficient. The statute being of so recent a date, it was well known to the Court, as well as to the people at large, that the whole object of this and other provisions of it was to quiet a large body of the inhabitants of the Dis trict of Maine, whose uneasiness and discontents, under the existing laws, had excited great public anxiety, * and [ * 305 ] threatened extensive mischief. At least, this would be confessed to have been the sole occasion or cause of so singular a piece of legislation.
    And as neither the cause of the statute, nor the intention of the legislature in passing it, would countenance the extending of its operation to a case like the present, so neither do the words support such a construction. On the contrary, its provisions apply only to an action “commenced against any person, for the recovery of any lands or tenements, which such person now holds by virtue of a possession and improvement, and which the tenant, or person under whom he claims, has had in actual possession for the term of six years or more from the commencement of such action.” The tenant in this case is so far from claiming by virtue of possession and improvement, that at the trial he exhibited his title by deeds with warranty. Upon those deeds he has sufficient remedy, and has neither occasion nor right to obtain it in this extraordinary manner against the present demandant. In this case particularly, both parties claimed under the same original title, and if both have title, they are tenants in common, for whom the law has provided a specific remedy by action of account, in which the tenant must account for the rents and profits, as well as charge his repairs and improvements ; but the application of this provision to the case of tenants in common, would be a great inroad upon the common law, in regard to this species of estate. As between tenants in common, then, the application of the statute is not only useless, but absurd and mischievous.
    Jackson, for the tenant, insisted that the fair construction of the statute would extend it to every tenant claiming under a defective title. Every tenant has some species or degree of title, and a naked possession may, by sufficient length of time, become an indefeasible title against all the world. To say that the statute was intended to benefit mere wrong-doers, such as have, without pretence of claim, entered upon the lands of others, and held f*306] out the real * owner, and that those who have entere J under a regular conveyance, which they believed valid are to be excluded from its provisions, is imputing to the legislature something worse than “ a singular species of legislation.”
    But the statute deserves no such construction. By the words “ under whom he claims,” it plainly supposes the tenant may have derived a title from some former possessor, and thus be in possession under a title which he might well presume to be good, but which afterwards proves to be defective. The tenant stands in the same relation to the demandant as his grantor, the original disseis- or, would, and is entitled to the benefit of the statute equally with him.
    As to the objection from the parties being tenants in common, it is a sufficient answer, that the statute is not intended to alter the law, so far as respects this objection, by letting in the party to his claim for mesne profits beyond the time limited for an action for such profits. If it should be held that a tenant in common can avoid the operation of the statute, it will always be evaded ; for the demandant will in every case bring his action for a part only of the land, and so take his case out of the statute.
    If the tenant produced his deeds at the trial, which is not acknowledged, other tenants will hereafter keep theirs in their pockets. And upon a review of the present action, the tenant may conceal his defective title, acknowledge himself a mere trespasser or disseisor, and thus entitle himself to the peculiar privileges of the statute.
    
      The solicitor-general, in reply. If this statute is to receive so extensive a construction as is contended for by the tenant, it will be the most operative one ever passed ; it will change the whole doctrine of the common law relating to real actions. But such a construction would be a perversion of the intended application of it. The argument from the words “ under whom he claims,” can have- little effect, when it is considered that, among the class of settlers in Maine, in reference to whom the statute was * made, it is a well-known practice to sell what they [*307] call their possession or improvement, with a perfect understanding by the parties that the vendor has no shadow of title but what results from his labor on the land, and the estimated value of that labor is always the price agreed on. If the tenant should conceal his title, in order to avail himself of the provisions of the statute, it would be in the power of the demandant to defeat such a contrivance, by showing the title himself, it being a matter of record, and equally accessible to all.
    But, let the construction of the statute be what it may, having become a law since the commencement of the present action, it cannot constitutionally affect the rights which the demandant had when he thus claimed to enforce them, if, indeed, it is in any view a constitutional law.
    The opinion of the Court was afterwards delivered by
   Parsons, C. J.

[After stating the history of the action, to the demandant’s motion for an habere facias seisinam.] The ground of this motion is, that the statute called from its title The Limitation and Settlement Act, extends only to cases where the tenant has no title, but only a naked possession and improvement; and particularly that it does not extend to cases where the parties are tenants in common of the tenements described in the writ, because, as between them, an action of account lies, in which account the expenses of repairs must be deducted from the profits.

The third section of the statute enacts, that where any action has been or may be commenced for the recovery of lands, which the tenant holds by virtue of a possession and improvement, and of which he, or those under whom he claims, have had the actual possession for six years or more, the jury, at the request of the tenant, shall find the value of the improvements, and also, upon the requisition of the demandant, shall find the value of the tenements, if they had not been improved. If the verdict be for the demandant, ne shall have judgment on it; but the special * provision relates to the award of execution. If the de- [ * 308 ] mandant shall, at the same term when the verdict is found, elect to abandon the premises to the tenant at the unimproved value so found by the jury, if the tenant within a year pay into Court, for the demandant’s use, that value, with interest, he shall have a good title against the demandant and his heirs; otherwise, at the expira tian of the year, the demandant shall have execution on his judgment. But if the demandant shall not make such election, he shall have no execution on his judgment, unless he pay to the tenant’s use the value of the improvements, as found by the jury, within one year; on which payment he may have an habere facias seisinam.

From these provisions, it has been argued for the demandant, that the tenant, holding in common with the demandant, had not a possession and improvement within the statute, it being supposed that the terms possession and improvement in the statute exclude all title.

This statute supposes that the writ may well be sued against the tenant, for the demandant to recover seisin. The tenant, therefore, must have the freehold either by right or by wrong; for the freehold cannot be lawfully demanded, but against him who has a freehold. The tenant’s possession and improvement must, then, be a seisin of a freehold estate. Now, this seisin is a title against all who have not a paramount title. Against strangers who enter and oust the occupier, he may maintain a real action, or, upon re-entry, an action of trespass. We cannot, therefore, conclude that no case is within the statute where the tenant has any title.

To adopt the demandant’s construction would further be inequitable, as the statute would thus be made to grant indulgences to persons who entered as disseisors, without color of title, which were not allowed to persons who might enter under a defeasible title, and improve the lands, honestly believing that they had right.

[*309] *The statute, in its true construction, must, in our opinion, extend to all cases where the tenant, or those under whom he claims, has been in possession six years or more before the commencement of the suit, by any title whatever, if the demandant has a better title.

As to the accountability of the tenant for the rents, out of which the repairs may be deducted, we do not see any argument resulting from it against this construction. Account can only lay for six years’ rents, and, although the repairs may be discounted, yet the expense of new improvements cannot be considered as expenses in making repairs. If the demandant, being a tenant in common, thinks proper to pay his proportion of the expense of those improvements, he may claim of the tenant in common his proportion of the profits increased by the improvements, if he can maintain any action of account.

The demandant has not contested the constitutionality of this statute, so far as may affect actions sued after its passage, but denies it as affecting actions pending at that time. We see no ground for this distinction ; and if it were competent for the legislature to make these provisions, to affect actions after to be commenced, the same provisions might apply with equal authority to actions then pending.

But it will be remembered that we give no opinion as to the general constitutionality of this statute, that point not having been questioned by either party. When parties are before us, who claim rights adverse to the statute, it will then be time enough to decide on its legal effect. The present case is, in our opinion, within the true intent of the statute, and in awarding execution the Court must be governed by it.

05= At this term, in the case of Jesse Cox &, Al. vs. John Cal lender, the same point was made, and decided in the same manner 
      
      
        [Anmer vs Cattle, 5 Bingh. 208. — 2 M. & P. 367. — Churchill vs. Crease, 5 Bing 177.— Terrington vs. Hargreave, 5 Bingh. 481.— Gilmore vs. Shooter, 2 Show. 16. — 7. Jones, 108. — 1 Vent. 330. —2 Mod. 31. — King vs. Sparrow, 2 Str. 1123.— Ansell vs. Ansell, 3 C. & P. 564. — Kirkhanger vs. Herbert, Wilkinson's Lim. 145. Fowler vs. Chatterton, Wilk. Lim. 146. — Ed.]
     