#### *McKim v. Moody and Others.

March, 1822.

Ejectment† — Compensation forlmprovements.‡ — Where land has been recovered in ejectment, and the defendant groes into chancery, to obtain compensation for improvements, he will not succeed if he had notice of the plaintiff’s title at the time of making- the Improvements.

This was an appeal from the court of chancej-y for the Richmond district, in which court William McKim filed his bill setting forth the following case: that an ejectment had been brought and a judgment obtained against him, by John Moody and Martha his wife, John Matthews and Sarah his _ wife, .and others, which said female plaintiffs are the next heirs of Anne Moody deceased, who was devisee of James Swinton deceased: that the subject of the said suit, was a lot in the city of Richmond known by the number (644,) which was one of those known by the appellation of stray lots, under which denomination are included all the lots drawn as prizes in Byrd’s lottery, for which the tickets have not been discovered: that the only title set up by the lessors of the *32plaintiff was an adverse possession of James Swinton for twenty years, without interruption, and prior,to the occupancy of the complainant; and on that ground alone the jury found for the plaintiff: that the complainant does not impeach the propriety of the verdict, but that there was no sufficient evidence proving that the said Swinton had ever enclosed the said lot; on the contrary it was proved, that it was a thoroughfare for waggons, &c. which had made a road through it about the year 1799 or 1800: that, when the complainant came to the possession of it, it was unenclosed, and had been so for a long time before, and as he believed, unclaimed by any person: that it never was entered upon the books of the commissioners of the revenue, either in the name of the said Swinton, or of any person claiming under him: that the complainant *took possession with the knowledge of the said Swinton, who asserted no claim to it, and made no opposition: that he contracted with the late William Nelson, the agent of Charles Cárter the surviving trustee of William Byrd, for the purchase of the legal title, but subject to the ticket, if it should appear: that believing it improbable, after the lapse of so many years, that the ticket would ever appear, the complainant commenced and completed expensive improvements on the said lot: that no permanent improvements had been made by him before this time: that during all this time, there was no intimation made to him of a claim on the part of the representatives- of the said • Swinton, nor was such claim ever made until after his improvements had been completed, a part of the lot which had been also expensively improved, had been disposed of, and real estate in the said city had greatly risen, in value: that by the death of Charles Carter the agency of William Nelson ceased, and the complainant was prevented from obtaining a conveyance of the legal title; he, therefore, prays that the judgment may be injoined, until an account can be taken of the value of the improvements on the ground recovered, and of the mesne profits thereof: that he may have a decree for any balance of the said account, which may be in his favor: that in default of payment thereof by a short day, the said piece of ground may be decreed to be sold, and out of the proceeds of the said sale, payment may be made to the complainant as aforesaid.

An agreement, signed by William Nelson, jun., was filed with the bill, by which the said Nelson, as agent for Charles Carter, trustee of William Byrd, acknowledges that he has sold to William McKim the legal title to lot 644, which is in the said trustee, but not the right of the holder of the ticket; and that the said McKim is to pay $400 on the 1st of July, 1806, when the title is to be conveyed accordingly. The agreement is dated May 30th, 1805. *An injunction was awarded.

The defendants filed their answer, denying that the lot in question was a stray lot; but, on the contrary, that they believed that James Swinton, under whom they claim title, was the owner of the ticket which drew the said lot in Byrd’s lottery, and that the said ticket has been lost or destroyed. They admit, that in their suit at law, they relied on an adverse possession of more than twenty years: that there was the most abundant evidence, that Swinton had enclosed the lot, and kept it enclosed for many years; and that if he did not keep the whole lot enclosed, he did a considerable part of it, until the day of his death. They deny, that the whole lot was unenclosed in 1799 or 1800, when the complainant states that he took possession of it; that Swinton paid taxes for the lot; and that the question of title is now definitely settled by the judgment at law: that they believe, that Swinton lent this lot to the complainant for a particular purpose; and he continued to hold it after Swi-nton’s _ death, and during the minority of his friendless daughter: that Swinton confirms this suggestion in his last will, and says, that the purpose being answered, the complainant was his tenant at will: that the contract with Nelson opposes no obstacle to the pretensions of the defendants: that Carter’s title was nothing more than the mere naked legal title, held for the person who had drawn the lot as a prize in the lottery, and can avail nothing in favor of the complainant, who has never obtained even that naked legal title, and does not pretend that he has ever paid one cent for it: that the complainant well knew, that the equitable title was outstanding in the holder of the ticket; and does not pretend that he ever was the owner of the fortunate ticket: that it is not true, that the improvements or any part of them were made by the complainant, without information of a claim to the lot on the part of Swinton’s representatives: that the onty case, in which the improver of property not his own is entitled to compensation for improvements, *is, where he has probable grounds at least to believe that he .is improving his own property, and is ignorant, at the time of making the improvements, of there being a better title in any other person; which was not the case with the complainant. They, therefore, pray a dissolution of the injunction.

Many depositions were taken on both sides, which go to establish or disprove the fact that McKim had notice of Swinton’s title, at the time he put the improvements ’on the lot. There is some difference among the witnesses on the points, whether the lot was partially or entirely enclosed by Swinton; how long that enclosure was kept up, &c. It is presumed, from the event of the cause, that these questions of fact were decided in favor of the appellees; and that it was considered that Swinton had an adverse possession of twenty years, of which title McKim had notice.

The chancellor dissolved the injunction; and an appeal was taken to this court.

Nicholas contended, on the part of the appellant, that the lot was vacant when McKim took possession, and that he fortified his right by purchasing the title of *33Byrd’s representatives: that McKim should be allowed compensation on two grounds: 1. That he had every reason to believe that his title was the best in existence. 2. That there was gross negligence in Swinton, if not fraud, in suffering McKim to proceed with his improvements, without giving notice of his claim to the lot: that the case of Southall and McKeand,(a) was a complete authority on this point: indeed, this case is stronger, because McKim had purchased the legal title whereas Southall had only an equitable claim: that Nelson wa-> invested with full authority from the surviving trustee to dispose of the property; *and the contract with him gave McKim a right to call for the legal title, which, in equity, is equivalent to the legal title itself: that the evidence proved, that Swinton and those deriving under him, had lain by and permitted McKim to complete his improvements, without giving notice of their claim, and thereby had given McKim a right to compensation for his improvements, (b)

S. Taylor and the Attorney General, for the appellees,

said, that it might be admitted that McKim really believed he had the best title to the lot, and yet it would not give him a right to compensation for the improvements. He must have had good grounds for that belief, and there must have been gross negligence or fraud in the appellees, in not asserting their right. With regard to the grounds upon which McKim believed himself to have the best title, the evidence abundantly proves, that he well knew the lot had been occupied by Swinton for above twenty years. The contract with Nelson was made without any authority; and if it had been, McKim had never entitled himself to demand a conveyance, as it is not pretended that he had ever paid one cent under that contract. As to the fraudulent silence of Swinton or his representatives, it is disproved by the facts in the cause. Swinton died in 1799, and his heir, an infant daughter, left the country immediately. The case of Southall and McKeand is not at all like the present. Southall was guilty of negligence in not bringing his suit for a number of years. It was supposed that he had abandoned his claim. Here, there was no reason lor such a supposition. McKeand too had the legal title; in this case, McKim was a mere trespasser from the beginning. Nelson had no authority to make any conveyance; except to fortunate adventurers. A possession of twenty years is sufficient to give a title in ejectment. Indeed, Lord Mansfield has said that twenty *years possession is sufficient to found a presumption of a fee simple.(c) If one conscious of the defect in his title applies to equity for relief, his application will be rejected.(d) Whether McKim knew of the title of Swinton or not, he well knew that he himself had neither the legal nor equitable title, and this would be sufficient to deprive him of all claims upon a court of equity.(e) If the appellant should succeed in this case, then any man may take possession of real property, not in the actual occupancy of the rightful owner, particularly the property of infants and non-residents, and improve to any extent; and thereby acquire real security for the value of the improvements. Such a principle can never be sanctioned by a court of equity.

W. Hay, junr. for the appellant, in reply.

The appellees having succeeded in a court of law, their possession of the legal title cannot now be disputed; but, this concession does not affect the claim of the appellant to compensation for improvements. The principle, on which the relief claimed is given, extends as well to a legal as to an equitable title. In fact, the cases in which it has been given, presuppose an eviction of the possessor by a legal title. This principle is acted upon in every case where relief is granted against a judgment obtained at law, upon equitable circumstances of which the party could not avail himself, and which make it unconscientious in his adversary to hold his legal advantage.

The principle, upon which relief is granted in a case like the present, is fraud. The rule is borrowed from the civil law.(f) Courts of equity, adopting the principle, view the conduct of a man who recovers the property in a court of law, and with it the improvements, and who claims to hold them without compensation to the former *possessor, as unconscionable and fraudulent; more especially, where “the improvements, as in this case, are lasting benefits to the inheritance. They, therefore, interpose in favor of a bona fide possessor, and will not permit the person who has recovered, to hold the estate, without compensation to him. It is a case to which the maxim forcibly applies, “nemo locupletari debet aliena jactura.” Peterson v. Hickman,(g) and Edlin v. Battaly,(h) are illustrations of these principles and cases in which relief was given against the legal title. As to the objection that the appellant knew, at the time he entered, that he had no title, the answer is, that his title was honest as to the appellees. If their title was legal, it was a dormant one. It appears, that Swinton’s neighbours, were unacquainted with it; and the appellant, upon the proofs, was equally ignorant of it. In reference to the owner of the ticket, he claimed to hold in subordination to his title, and became a trustee for him by his very contract with Nelson; and if it was dishonest in the appellant to purchase the legal title, it was equally dishonest in the trustee to sell it; a charge, which implicates very many individuals who hold their property, which they have expensively improved, by the same title. The omission to proceed upon the contract *34with Nelson, is explained by the death of Mr. Carter, the trustee.

Another title of'the appellant to relief is, that the appellees stood by and permitted him to make his improvements, without making known their claim. It is proved, that they had knowledge of his proceedings, by the will of Swinton. The case of Savage v. Foster, (i) shews, that a person who stands by without making known his claim, acts fraudulently; and the privileges of infancy and coverture are given for the protection of the parties, not to enable them to defraud others. As to the objection **that the parties have a legal right which cannot be lost, like an equitable one, by the omission to assert it, it has no application to the case. The appellant seeks not to deprive them of their estate, as to which alone the maxim applies; but, claims compensation for an injury sustained in consequence of their fraudulent conduct.

The case from Johnson, cited by Mr. Taylor, depended upon the provisions of a statute of New-York, and can have no application. It is open to the further observation, that the improvements were made after a grant had issued to another, which, being a recorded title, was notice.

†

 Ejectment — See monographic *note*on “Ejectment” appended to Tapscott v. Cobbs. 11 Gratt. 172.

‡

Same — Compensation for improvements. — One yrho takes a title, -when he knows, or ought to know, that it is defective, is not entitled to compensation for improvements as against the true owner, even though the latter saw the improvements in progress and did not object. Effinger v. Hall, 81 Va. 102. citing principal case. Compensation for improvements made by an occupant on land which had been acquired mala fide, or with notice of an adverse title, will not be allowed. Dawson v. Grow. 29 W. Va. 333, 1 S. E. Rep. 564. citing principal case. To the same effect, the principal case is cited in Cain v. Cox. 29 W. Va. 262, 1 S. E. Rep. 301; Davis v. Settle, 43 W. Va. 42, 26 S. E. Rep. 567.

(a)

1 Wash. 336.

(b)

 Sugd. law of vendors, p. 522.

(c)

 Cowp. 595, Den v. Bernard.

(d)

 Sugd. p. 526.

(e)

 Johnson’s reports 489, Jackson v. Seymour.

(f)

 Inst. lib. 2, tit. 1, § 30. Digest Book 6, tit. 1, 7, 38. Book 41, tit. 1, 7,12.

(g)

 Cited 1, Ch. Bep. 5, and in 18th Vin. Abr. tit. purchaser I plea 1, page 125.

(h)

 2 Levinz, 158.

(i)

 9 Mod. 87.

JUDGE ROANE,

delivered the opinion of the court, that the decree of the chancellor should be affirmed.*

*

Jtoge Coalter absent.