Jackson v. Loomis

In an action of trespass for mesne profits against a bona fide purchaser, he shall be allowed against the plaintiff, in mitigation of damages, the value of permanent improvements made in good faith, to tho extent of the rents and profits claimed by the plaintiff

Trespass for mesne profits, tried at.the Washington cm cuit; July 15th; 1823; before Walworth;.C. Judge; On. the trial, the plaintiff produced' in evidence an. exemplification of a.record of recovery, in an action of ejectment, duly, signed and filed on the 5th day of March, 1822, by which it appeared that the demise in the declaration, was.laid- on- the-2d day of February, 1818; and it was- admitted by-the defendant, that a writ of possession had been issued on the judgment, and the lessor of the plaintiff put into, possession of the premises, on the 15th July, 1822,.' Robert Wilcox was then sworn.as a witness on the part, of the plaintiff, and, testified that he knew the premises recovered in the action-, of ejectment; that about 32¿ acres were, cultivated, lands; that the annual' worth or value of the. 32J acres, over and: above taxes and- ordinary repairs, was; 2' dollars- per-acre, amounting in the whole to. sixty-five- dollars.pm annum. The. defendant then offered to prove that. on.the first day» of May, 1812, he entered intopossession of the premises as a bona fide purchaser,. for a valuable consideration, by virtue of a deed from one James Wells, who hadheen reported the. owner of the premises, and ha,d been in- the. possession, for many years-previous to the. sale to. the. defendant;. that; the defendant continued to possess and- enjoy the. premises: peaceably, without interruption, until' the 2d day of'February, 18.18, when the lessor of the plaintiff in the action of ejectment claimed the premises by virtue, of a sale under a mortgage, executed by Wells anterior to. the- date of the. deed, under which the defendant, held the. premises, and commenced the action of ejectment as. mortgagee,; that the defend ant resisted the claim until it was finally decided against him in the Court for the Correction of Errors. That from the 2d day of February, 1818, to the time of the decision, the defendant had expended in labor and advances in making permanent, useful and beneficial improvments upon the premises, a sum more than equal to the value of the annual income from the second day of February, 1818, until possession of the premises was delivered; that the improvements made by the defendant consisted in digging and gathering stones from the soil on the premises, and building stone walls or fences around the premises, and forming them into convenient lots. Which evidence the counsel for the defendant insisted should be admitted and allowed as decisive to entitle the defendant to a verdict, and to bar the plaintiff from a recovery, and, at all events, that it should be admitted and allowed in mitigation of damages. But the counsel for the plaintiff insisted that the evidence was not sufficient, and should not be admitted or allowed either to entitle the defendant to a verdict, or in mitigation of damages. The Judge refused to receive the testimony, either for the purpose of entitling the defendant to a verdict, or in mitigation of damages, and the jury gave a verdict for the plaintiff for $287 damages. To this opinion the defendant excepted, and the question now came before the Court on a bill of exceptions, by way of motion for a new trial.