#### Jackson, *ex*dem. Fisher, *against*Creal and Kellogg.

Where a person entered into and improved, land by the permission of a tenant in common of the land, and a portion was afterwards made in 1793. it was held that the person to whose share the land in question had fallen, could not maintain an action of ejectmen fo it, without tendering to the tenant the value of the improvements, both before an or all the time since the partirion after deducting for the use and occupation of the land.

A person who has entered by the permission of one tenant in common cannot a partition having been made set up an adverse title, in bar of an action of ejectment in common to whose share the premises had fallen.

THIS was an. action of ejectment,Yorpart of lot No. 2»,. in the? seventeenth allotment of the *Kayaderoiseras*patent. ■ In a par» tit-ion of the patent, lot -No. 2.. fell to the share of the lessors of the , plaintiff, *Daniel Campbell*and *John Beekman,*who were seised ‘ thereof, as tenants in common, until the year 1:793, when a par» tition -was, made, and that'part of the- lot No, 2i, which included the' premises in question,-fell to the share of the lessor-of thepictlinm.

Previous to,the- .above-mentioned ’partition,-,in. 1786, *Daniel Campbell*gave one *Gilbert*Weed an instrument in' writing in the following words: “ Whereas Mr;. *Gilbert Weed*has signed an agreement and obligation*.for 200 acres of land, where-heis now* , , _T. . . improving, m the general Lot JNo. 2., in the- 17th allotment; I am w^^ng be should settle on said: land, and f promise to. abide by said agreement. As witness my hand:at. *Schenectady,*the 31st *oi. duly*1786-. *Daniel Campbell.” .Weed,*having before improved part of the .lgnd, entered- by virtue of the said writing, and it -was through him,, by various -mesne assignments of his right- and possession,‘that the defendants; derived their claim. The defendants never paid any rent. At the time Weedsoidh-is possession- there was some real due, which he paid to *Campbell,*but the premis-es in- question, not .tailing to the spare *oijdampbell,*in the partition, he returned the money to' *Weed,,*according to an - agreement between them, by which *Campbell*was not to give- a lease to *Weed oí*the premises,, if, on thn partition, they should not fall to the* share of *Campbell.*

The case was submitted without argument, and .such judgmeni and rules to fee entered as the court should, think proper».

*117Yates, J.,

delivered the opinion of the court.

The 6th section of the act for the partition of lands, passed the 16th of *March,*1785, (1 *Greenleaf’s*edit. *L.*N. *Y.*165.,) states, that in case, on the partition of any patent or tracts of land on which improvements have, theretofore, been made, by any owner or proprietor, or by any person or persons, by con- . sent of any owner or owners, proprietor or proprietors of any such patents or tracts of land, the person or persons to whose share such parcels of improved land shall fall, upon partition of such patents or tracts of land, shall, before he or they be permitted to the possession of the same, pay the respective possessor or' possessors thereof, the value of the' improvements made thereon; and the manner of settling and ascertaining the value of such improvements by the commissioners for partition, at the instance of the proprietor, is specially pointed out; and the value being ascertained, as stated in the act, and the amount tendered to the possessor, the proprietor shall be entitled to the possession, to be delivered to him in virtue of a precept to be issued by the-commissioners. On the 10th of *February,*1790, an act passed amending this law, by which the above sixth section is extended to improvements made after the passing of the first-mentioned act; and by a subsequent statute, passed the 3d of *April,*1792, (2 *Greenleaf’s.*edit. *L.*N. *Y.*442.,) the last-mentioned act is further amended, and a judge of the court of common pleas is vested with the same powers, before given to the commissioners,as to ascertaining the value of the improvements ; and the judge- and jury are authorized and required, in every case, to ascertain and value the use and occupation of the premises so held, used, and occupied, and to deduct the amount of such valuatidn from the amount of the valued' improvements.

The subdivision of lot No. 2., in which the premises in question are situated, took place in 1793, under the statutes above, mentioned, when the premises fell to the share of the lessor of the plaintiff.

From the facts disclosed by the case, it is manifest that the purchasers under *Gilbert Weed,*according to the intent and meaning of the above statutes, and as claimed by the defendants, are entitled to compensation for the whole of their improvements, and were authorized to retain possession until such compensation, after deducting for use and occupation, had been tendered to them. They cannot, therefore, be now deprived of the pos* *118session, "without receiving, remuneration, according to, the rule prescribed, because it was the'duty of -the lessor of th:e plaintiff to have caused the valuation to have been made, and to have _ paid the amount. Having neglected to do so,-and having allowed the subsequent improvements to be made-, he ought not to be exonerated from paying the value of such as have been made,, both before, andsirice the partition of T793'j subject to the deduction before stated» This neglect, while it thus protects the- defendants, cannot bar the recovery of the lessor altogether, not-; withstanding the possession,of twenty years 'since the partition-because ITeed,-under whom the defendants hold this possession, having originally entered under *Daniel:'Campbell,*a có-tenánt with, the lessor, it c.an-not be -deemedadvei'se. Judgment must,,, therefore, be entered for the plaintiff, with stay of execution,-, until the defendants shall have been paid and satisfied for the,-,, value of all the: improvements, after deducting the amount for ■the mse and Occupation. " , - '

Judgment for the plaintiff .accórdihglyv