#### John G. Brawner *v.*James Botton.

Quieting Title — Vendor and Purchaser — Accountable for Rents.

If improvements are made by a party in possession of lands, under the belief that he was the owner, by reason of a valid, legal or equitable claim, the foundation of which was of public record, he is entitled, on eviction, to his improvements, measured by the increase in the vendible value of the land, when recovered, arising from the improvements; but in no event to exceed the consequent enhancement of the value, beyond the rent, waste and deterioration.

Same.

An exhibition of a claimant, of a deed, never recorded, and the consideration not appearing to have been paid, does not invest him with title nor to impress the belief to that effect, does not entitle him to claim improvements, under the statute.

APPEAL PROM MCLEAN CIRCUIT COURT.

December 7, 1870.

*550Opinion op the Oourt by

Judge Hardin :

A writ of possession in favor of Joseph Burnett having been awarded by the McLean circuit court to .put him in possession of a tract of about 108 acres of land, purchased by him at a decretal sale in a judicial proceeding1 to which the appellants, John G-. Brawner and others, appear to have been parties, the appellee, James Botton, the tenant in possession and claiming the land under a conveyance purporting to have been made to him by "W. W. Brawner, as commissioner, in another suit in the same court in 1860, brought this suit in equity for enjoining the execution of said writ, or, failing in that object, to have an account of his improvements, made on the land, taken and set off against his liability for rents, and to recover a balance which he claimed as due him on that basis, in the event of eviction, and to have a lien on the land adjudged in his favor and enforced for its payment.

The appelants controverted his claim to the relief sought in either aspect, and in the progress of the cause, the injunction was dissolved. Afterwards, upon a report of a commissioner, and proof taken by him as to improvements and rents, the court adopting the commissioner’s estimate of the1 improvements at $950, and rents at $780, inaccurately assumed that a balance of $150 was due to the plaintiff on this basis for which there was a lien on the land, and directed that so much of the land be sold as necessary for its payment, together with the plaintiff’s costs; and from that judgment the defendants have appealed, and the appellee has prayed a cross-appeal.

The record of the suit in which the writ of habere facias was awarded does not appear to have been exhibited, but as the petition admitted the judgment for possession, and the plaintiff, though exhibiting the unrecorded deed of W. W. Brawner, and an apparently imperfect transcript of a suit in which he attempted to convey the land, but without legal authority to, do so, failed to show any valid title in himself through the conveyance or otherwise, the injunction was properly dissolved. We are also of opinion that there is no available ground for reversing the final judgment on the cross-appeal. But on the contrary, the court erred to the prejudice of the appellants. If the improvements were made by the appellee under the belief that he was the owner of the land by reason of a valid, legal, or equitable claim, the foundation of which was of *551public record, be was entitled to compensation for tbe value of bis improvements upon tbe land at tbe time of bis eviction, according to section 1 of tbe first article of chapter *10*of the Revised. Statutes. But in such a case tbe value of tbe improvements should not have been estimated according to their original cost, but should have been measured by tbe increase in tbe vendible value of tbe land, when recovered, arising from tbe improvements (Thomas vs. Thomas’ Exor., 16 B. Monroe 420); and in no event should tbe liability of tbe appellants to account for tbe improvements have exceeded tbe consequent enhancement of tbe value of tbe land beyond tbe liability of tbe appellee to account for rents, waste and deterioration of tbe land. According to tbe weight of tbe evidence, tbe improvements, if estimated on this basis, added nothing to tbe vendible value of tbe lands, which, in tbe opinion of several of tbe witnesses, would have sold for as much in tbe condition it was in when tbe appellee took possession, as in that in which be left it, except that its value may have increased in consequence of tbe general rise in tbe value of land. If this be so, it is not material to inquire whether tbe claim of tbe appellee was such as to exempt from accountability to tbe appellants for rents, before tbe assertion of their claim; nor whether tbe character of bis claim and its foundation were such as to entitle him to tbe benefit of tbe statute referred to. But it may be observed, that as it is manifest from tbe meager exhibition made by tbe appellee himself of tbe proceedings of tbe suit under which W. W. Brawner attempted to sell and convey tbe land, that bis deed which was never recorded, and tbe consideration of which does not appear to have been paid, neither invested tbe appellee with tbe title, nor was such as reasonably to impress him with tbe belief that it could have that effect, he was not entitled to tbe benefit of tbe provisions of tbe statute.

*Oiuen &*Gates, *for appellants.*

*Tanner, for appellee.*

It results that tbe appellee was not entitled to tbe relief sought by bis petition in either aspect of tbe case.

Tbe judgment in bis favor is, therefore, reversed, and the cause remanded with instructions to dismiss the petition.