Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1823-09-12

I
mad up 10 he time IF he judgment, deductng
only the rents and profits tc,r,.rd and the
damage aud waste committed after suit
brought.
d. BY the former, the claimant might. If he
pleased, protect himself against Judgment
for the value q flthe improvements YAurrcn,ier-
my the land 10 his adversary. and giving bond
aud security To warrant the title. Bat he WAS
not bound to do 81, nor was his giving bond
and security To pay the value Of the improve
ments, prerequisite 10 his obtaining posses
SION of his laud, nor was Tie Judgment against
him made lien on the land
BY the latter act, the claimant is bound 10
give such bond, AT the peril of losing his
land for ifhe failed To give il, the occupant is
al liberty to keep the land, upon giving bond
and security 10 pay the estimated value of it
unimproved and even this he may avoid,
where the value of the improvements exceeds
three fourths that Of the land unless The claim
ant will convey TO the occupant his righ, 10
the land for upon this condition alone is
judgment TO be rendered against the occupant
for the assessed value of the land.
The only remaining provision of these acts,
which is al all important, and is not comprised
in the above view ofthen is the mode pointed
out for estimating the value of the land in
lis unimproyed state, of the improvements,
and OF the rents and profits and this is the
same, or nearly SO, in both so that ii may be
SAFELY ah med, that every part of the act Of
1897 is within the purview of the act oGI8I2;
and, consequently, the former act was re-
pealed by the repeating clause contained in the
latter.
In pursuing the first head of the inquiry.
therefore, to which this case gives rise, the
Court will cOniine its observations to the act
OF 1879, and compare lis provisions with thc
law OF Virginia, as il existed, on the l8ti! of
December, 1899.
The common law of England was at that
period, as il still Is, the law of thai State and
We are informed by the highest aulnoiIfy,
that right to lard, by that law. Includes he
right tn enter on ii, when the possession is
withheld from the right owner 10 recoye.- The
possession by suit 10 retain the pos ession,
and To receive the issues aud profits arising
from IL. (-Aihanl'S case 8 90 ag9.) IN Lifords
case III Co 49, it is laid down tina, the rr.sess
of the dissrsee vests the pro peri $ IL him in
the fruits orprofls of la land, as wcll those nat
were produced by the Industry of t1e ocru-
aaat rs those which were the natural pro-
ducton of the land, not only agaIasi the
disS"isor HIMSELF but against his II flee,
lessee, or dissrisor: " for" says the book,
: tue act of nay dIsseis0r may alter my aciiOn
but caunol lake away my action, properly or
Fight 50 ihat after tn regress the disspisee may
seize these fruits, though removed from the
land, and the only remedy of tht dIsseisoT, in
such case, Is 10 recoup their value ,gainst the
claim of damages" The doctrine laid down
IN this case, that the disseisee can maintain
trespass only against the disseisor fvr the rents
ana profits, IS, Nth great reason, orerruled in
the case Of Holcomb y. Il UiytS, Zero. Chs.
| 5fO.J (See also Bal. ": u. 87.)
! Nothing, IN short, can be more clear upon
principles OF iaw and reason than that a law
! which denies tO the owner o { land a remedy to
recover the possession Oft, when withheld by
! NJ I....r
obtained 1t, Or to recover the profits received
from It by the occupant or which clogs his
| covetyot such possession and profits, by
conditions aud restrictions tending TO diminish
the value and amodDt of The thing recovered.
impairs his right ~, and interest in, the pro-
perry II there be no remedy to- recover the
possession, the law necessarily presumes n
wan o. rlStt TO II. n the remedy afforded
he qualified and restrained by conditions of
any kind, The right ofthe owner may indeed
subslst, and be acknowledged, but it is impair
ed, and rendered insecure, according to the
! nature and extent Of such restrictions
right to land essentially implies, right
to the profits accruiDg from it., since without
the latter the former eau be of no Value
Thus devise of The profits of land, or even
a grant of them, will pass right to the land
itself fShep Touch %. Co. Lit b. For
what" says Lord Coke, in this page, dis the
Il
Thus stood the common law in Virginia at
the period before mentioned and it is not pre-
tended thatthere was any statute Of that
STATE less favorable 10 the rights Of hose who
derived title under her than the common law
On the contrary, the act respecting writs OF
r glit dec res, ~ express tgrE1s that If the
demandtni recover his seisin, he may recover
damages To- be ASSESSED by the recognitors uf
assZe, for the tenants withholding possession
Of the tenement demanded !" which damages
could he nothing else but the rents and pro
fits Of the land. 4 col. Lust Refusal, p.,4G5.l
! This provision OF the act was rendered Rces-
sary on account Of the intended repeal Of al
the British statutes and tie denial ofdamsgfs
10y The common law in all real actions, except
IN assize, which was considered as miXec
action. (Co. Int 257.j But in trespass qua
re ciaaSum Jregl, damages were always given
At common law. 10 90. l16.J And thai the
successful claimant Of land lie Virginia, who
RECEIVERS in clcctnent, was at all times entitled
! 90 recover rents and profits iu an action OF
/ trespass. was MT. and could not he questioned
| by the counsel for the tenant In this case.
/ IT, then, such was the common and statute
/ Iaw OF Virginia, 10 1888, it only rernains ~
! inquire, whether any principle Of equity vas
recognized by the Courts OF that State which
exempted the occupant uf land from the pay.
ment Uf rents and profits tO the real owner
! who has successfully established his right So
/ the land, either in a Court of law err of Eqnt.
Ity? No decision Of the Courts Of that State
Was cited, or is rccnlIecitd, which IN the r.
MODEST dcgrer sanctions such principle,
The case of SouihaH '. H'Rean, With
WAS much relied upon hy The counsel Tor tn