author: Read, J.

text:
    The Lessee of Davis v. Thomas Powell.
    A defendant, holding possession of premises under claim of title, will be allowed, under the occupying claimant law, as well for improvements made by him before his title commenced as for those made after.
    This case was reserved from Logan county to determine questions arising upon an assessment for improvements under the occupying claimant law.
    The facts were agreed as follows:
    It is agreed that the defendant purchased the lands recovered in the action of ejectment from Samuel Newell, as agent of Bur-net and Spencer, in March, 1820, and paid $217, took a title bond and wont into possession, and has occupied it ever since. Burnet and Spencer had no color of title, and the sale by Newell arose-from a misapprehension as to the identity of the land sold.
    In 1831, one Isaac Shingledeeker exhibited to defendant a patent issued to the lessor of the plaintiff, and claimed to be the-owner of the premises. Shingledeeker entered the land for taxation in the auditor’s office in his own name, in 1831, and then rented the premises to the defendant, who occupied under the lease, and'paid rent to Shingledeeker one year. In 1833 and 1834;, the taxes were not paid, and on December 29, 1S34, the land was-sold for taxes, as the property of Shingledeeker, and purchased by the defendant, who received a deed from the county auditor, February 4, 1837. In 1836, the contract with Newell was rescinded, the purchase money was repaid, or secured to the acceptance of the defendant, and the title bond surrendered.
    *The defendant commenced his improvements immediately after the purchase from Newell, and continued to make improvements up to the commencement of the action of ejectment in 1841.
    Judgment was rendered against the defendant in the action of ejectment, at the Juno term of the Supreme Court in this county,. A. D. 1843, and notice was then given by the defendant that he-claimed the value of his improvements, under the occupying claimant law.
    In April, A. D. 1844, a writ issued to the sheriff, commanding-him to assess the value of the improvements under the occupying-claimant law.
    At the June term, a. d. 1844, of the Supreme Court, the sheriff reported that he had ascertained the value of the improvements, by the verdict of a jury, in the manner required by law, and that they have assessed the same, over and above the rents and profits, to $900, which includes all the improvements on the premises-made prior to the commencement of the action of ejectment.
    The defendant set up no title on the trial of the action of ejectment, except his tax title, which accrued in 1834.
    The following exceptions were filed:
    “ And the said plaintiff now comes and excepts to the assessment - of the value of the improvements made on said premises under the • occupying claimant law, for the following reasons, to wit:
    “1. Because the improvements were made before the title accrued under which the defendant occupied the premises, and before a patent issued from the President of the United States.

      “2. Because the improvements are estimated at their cost, and not with reference to the increased value which they add 'to the premises.
    “ 3. Because the ‘ cabins,’ valued at $125, are not lasting and valuable improvements.
    “ 4. Because, in estimating the net annual value of the rents and profits of said lands, ‘the grain and grass now growing on said lands are not included.’
    *“ 5. Because the improvements are appraised too high, and the value of the land too low, and the return of the jury is, in other respects, informal, incorrect, and insufficient. For all of which we moved the court to set the same aside and order a new one.”
    B. Stanton, for the plaintiff:
    The defendant obtained no title by his purchase from Newell, as the agent of Burnet, by virtue of which he could claim compensation for improvements under the occupying claimant law, because:
    1. Burnet had no color of title to the premises.
    2. If he had acquired such title he relinquished it by the surrender of his title and possession, and by accepting the purchase money which was refunded by Newell.
    3. By the surrender of his claim, and the rescission of the contract with Newell, ho accepted the amount paid by Newell in satisfaction for all claim for improvements, or waived his right to ■demand such compensation.
    4. His acceptance of the lease from Shingledecker, who claimed under the plaintiff’s title, was an abandonment of his possession under the purchase from Newell, and a waiver of his claim to improvements under the occupying claimant law.
    5. The rescission of the contract with Newell, and the surrender • of his possession under it, placed the parties in the situation they would have been in if no such contract had ever been entered into.
    The defendant, therefore, was a mere trespasser, without color of title, up to the tax sale in 1835. The question, then, for the consideration of the court is, whether a party whose possession originated in a trespass, but who afterward acquires a defective title to the premises, can, by virtue of such title, claim compon.sation for improvements made before his title accrued.
    Section 1 of the act “for the relief of occupying claimants of land,” Swan’s Stat. 605, provides that in all cases *where any occupying claimant, being in quiet possession of lands or tenements, for which he can show such a title as is therein described, shall not be evicted or turned out of possession by any person having a better title, until the occupying claimant shall be fully paid the value of all lasting and valuable improvements, etc.
    It is submitted with confidence that the true construction of this statute is, that when any person takes possession of lands by virtue of any such title, and makes improvements in good faith, believing his title to be good, he shall not be turned out of possession without being paid for his improvements.
    The statute was not passed for the protection of willful trespassers.
    It was not intended for the protection of those who were so negligent in their dealings as to omit the usual and ordinary means of ascertaining the character of the titles which they purchased.
    But it was intended to protect those who were so unfortunate as to lose their land on account of defective title, after having used ■due diligence to ascertain its character.
    The legislature was well aware that there Were many titles in the state that seemed to be perfect, from the face of the records, which were, nevertheless, insufficient and defective. Tips law, therefore, was intended for the protection of those who had sustained serious losses, without any negligence or misconduct on their part. The very gist of the occupying claimant’s case is, that he made his improvements in good faith, relying upon the sufficiency of his title, and •expecting to enjoy the benefit of them himself. But it is clear that no such claim can be set up for improvements made before his title accrued.
    This construction of the statute is adopted by Judge Collet, in delivering the opinion of the court in Longworth et al. v. Wolfington et al., 6 Ohio, 10. He says, “ The law of this state is framed to cover every case where a party is evicted from the possession of' lands which he had improved, in the faith that he was the owner. In this state, lasting and valuable improvement's have frequently been made by persons in ^possession, when the title was in another, and when the person making the improvements believed the land to be his own.”
    Anj- other construction of the statute involves this absurdity; Acts which must be admitted to have been tortious and illegal when they were committed, and which would have subjected the party to both a civil and criminal prosecution, are, by the magic of a title which,is absolutely worthless for all other purposes, made very praiseworthy and meritorious acts, for which the owner of the land must pay the trespasser. The only adjudged case that can be found that looks like sustaining the defendant, is Shaler’s Lessee v. Magin, 1 Ohio, 236.
    The first remark 1 have to make upon this case is, that it is a circuit deci.sion, and is not binding on this court as authority.
    2. The court expressly say they do not hold that an occupying claimant “must,” in all cases, recover for improvements made before his title accruod, but that ho ought to do so in some cases. The court do not profess, therefore, to settle any principle, or establish any rule on the subject.
    3. It does not appear from the report of the case, whether the entry under which the improvements were made, was withdrawn by the defendant, or by some grantor of his, over whom he had no control. It seems to me the court will not presume that the defendant in that case withdrew the entry himself, and that the court gave him compensati&n for improvements made under a title which he had voluntarily abandoned. If the defendant in that case was (as is most prqbable), a purchaser from a party in whose name, and for whose use the original entry was made, and the entry was withdratvn-by the original owner without the consent of his grantee, then it would be unjust to refuse him compensation for improvements made “ in the faith that he was the owner of the land.”
    But, in this case, if the defendant had any color of title before the tax sale, which the court suppose gave him any sort of equitable claim to compensation for improvements, he had surrendered the possession which he held under it, and took a lease, and occupied the premises under it, from a party who ^claimed under the plaintiff’s title. This was an abandonment of all claim for improvements made prior to that time. His subsequent possession is not continuance of the possession which he acquired by virtue of the pretended purchase from Newell, but a new possession, which commenced with his lease from Shingledeeker.
    This possession, too, was of a character which excluded all idea of compensation for improvements under the occupying claimant law. His atonement to Shingledeeker was an acknowledgment of the plaintiff’s title, and his possession from that time to the tax sale was the plaintiff’s possession, and not inconsistent with, or adverso to his title. It would indeed be strange, if a tenant could claim that his possession during the tenancy was adverse to his-landlord, and compel him to pay for improvements made during the term.
    Yet this is the claim set up by the defendant in this case. The-difficulty in which the defendant was involved by the purchase of a defective title from Newell, ought not to influence the decision of this cause; it has long since been adjusted and settled by the parties themselves, to their mutual satisfaction, without calling for the interposition of this or any other court. And if the defendant in this case can claim compensation for his improvements, we car, not see any other principle upon which it can rest, than the broad ground that a willful trespasser who can succeed in patching up a. defective title, shall be entitled to the benefit of his own wrong.
    R. T. Sprague, for defendant:
    The state of facts, in the absence of any circumstances tending to explain or impeach the character of the defendant’s possession prior to his purchase of tax sale, would, as we conceive, entitle him, to compensation under the statute, for all lasting and valuable improvements made upon the premises, prior to the service of the-declaration in ejectment.
    The object of the statute is equitable, and, for the purpose of adjusting the equitable claims of parties peculiarly circumstanced, *may justly claim a liberal construction. Longworth et al. v. Wolfington et al., 6 Ohio, 9. The design of the statute seems to-be, to protect the interest of those who in good faith have obtained possession of, and made lasting and valuable improvements upon the land, to secure to them some compensation for the labor and money bestowed in improving and enhancing the value of lands-from which they are about to be evicted by another, who, having established a paramount and superior title, is about to enter and enjoy the product of their toils. Henry v. Doctor, 9 Ohio, 49. At the same time, the legislature is equally careful to protect the rights-of the real owners, or successful claimants of lands upon which others have entered and made improvements. Section 1 of the act,. Swan’s Stat. 605, prescribes limits within which the occupying claimant must establish himself, before the benefit of this statute can be made available. Having brought himself within these limits, and established the requisite title, the same section enacts that he “shall not be evicted, or turned out of possession, by any person or persons who shall set up and prove an adverse and better title to said lands, until said occupying claimant, his, her, or their heirs, shall be fully paid the value of all lasting and valuable improvements made on said land by such occupying claimant, or by the person or persons under whom he, she, or they, may hold the same, previous to receiving actual notice by the commencement of suit on such adverse claim,” etc. And section 4 of the same act, in prescribing the duty of jurors drawn to assess the value of such improvements, enacts “that the jury shall assess the value of all lasting and valuable improvements made, as aforesaid, on the lands in question, previous to the party receiving actual notice, as aforesaid, of such adverse claim.”
    There is no pretense but that Powell obtained possession of the lands in 1820, by means of a bona fide purchase from Burnet and Spencer, paid his money, and received a title bond, without the 'least shadow of collusion, or fraud, and that all the improvements upon the land were made by him in good faith. *Would not equity then require the plaintiff to compensate the defendant for improvements he has so made, which so greatly enhance the value of the land which the plaintiff has wrested from him, and is now about to appropriate to his own use? The case of Lessee of Shaler v. Magin, 2 Ohio, 237, fully sustains this view of the present case. Section 1 of the statute of 1820, 2 Chase’s Stat. 1164, under which that caso was decided, is nearly verbatim the present statute; and the court say, “we discover nothing in the statute that limits the claim of the occupying claimant to a compensation ior such improvements as were made after the commencement of his title. The statute is in the present tense,” etc. Again : “There is nothing in the law that excludes a right to recover pay for improvements made by the tenant, or the person under whom he claims, at any time before the commencement of the suit. It ■sometimes happens that persons seat themselves on vacant lands, make valuable improvements thereon, and afterward locate it. • In ■such a case, if in consequence of a delect in their entry, a junior ■entry should prevail, we can not see anything in the law, or in the policy on which it is founded, that entitles the successful claimant to take the improvements, without making compensation to the tenant.” If this decision is adhered to, and we have no doubt it will be, there is no necessity for reverting to any further facts in the'case.

      But further, we claim that the defendant had a sufficient title, prior to his purchase at tax sale, to entitle him to compensation for the improvements he had made, prior to that time, under the ■statute for the relief of occupying claimants. The defendant purchased the land in question of Newell, as the agent of Burnet and Spencer, in March, 1820, paid said Newell, as such agent, $217, took a title bond from him, and immediate possession, which possession he continued uninterrupted, until after his purchase at tax sale. The title bond was not surrendered until some time in the year 1836, and from aught that appears, until after he was entitled to a •deed of the premises under his purchase at tax salo. Powell was then in quiet possession of, and held the land in question, by ■*bond from, and under Burnet and Spencer, who, by their agent, Newell, claimed title from March 1820, until some time in the year 1836. But counsel assumes, that “Burnet and Spencer did not claim title to the premises in the manner prescribed by the statute, for the relief of occupying claimants.” In what manner, then, did they claim title? True, the character of the title claimed by them does not specifically appear from the facts as submitted. Whether they claimed as original patentees, or by deed from the original patentee, or from some one claiming'under the original patentee, or by devise, or descent, does not appear; but from the circumstances, as disclosed by the facts submitted, is not the conclusion irresistible, that Burnet and Spencer, by their agent, did claim, at the time Powell purchased, in 1820, that they were possessed of “a plain and connected title in law, or equity, derived from the records of some public office?” Any other presumption would involve the absurdity, that a party has paid his monoyin consideration of a bond, which the obligors, at that time, avowed their inability to exeente.
    There is no pretense but that Nowell was the legally authorized agent of Burnet and Spencer, and acted as such in this transaction in good faith; nor is it denied but that Powell purchased the land, paid his money, took a title bond and possession, and made his improvements in good faith, with the confident expectation that he would- receive a valid and bona fide deed in foe simple, from Burnet and Spencer, as soon as he should pay tho balance of the purchase money. Will it be presumed that Burnet and Spencer, by their agent, Newell, claimed any other than such a title to .the premises, as would enable them to comoly with the conditions of their sale and bond to Powell? The statute is sufficient^’ broad to embrace every species of valid title by which a party can claim-to hold real estate in Ohio.
    William Lawrence, for plaintiff, in reply.
    The return of the jury allows the defendant compensation for improvements made at two periods; first, from 1820 to *1834, during which time he attorned to Shinglcdecker, and consequently could not, alter that, be considered as an adverse claimant; and, second, from the date of his tax title, in 1834, up to the time of service of notice in the ejectment suit. Because of the allowance-for improvements made during tbo first period, this motion is made to set aside the return.
    Its decision depends upon a proper construction of the occupying claimant law. By the English law, and the common law of this country, the purchaser of land who was evicted by a superior title, could not recover for improvements. As to him the vxi\<i caveat emptor applied; 2 Kent, 334. Frear v. Hardenburg, 5 Johns. 272; Miller v. Watson, 4 Wend. 267. To remedy this defect of the common law our occupying claimant law was enacted for the benefit of bona fide purchasers of land, supposing they had good title. 6 Ohio, 10.
    The law of 1831, Swan’s Stat. 605, .protects five classes of claimants:
    1. Those who “can show a plain and connected title in law or equity, derived from the records of some public office.”
    2. Those who “being in quiet possession of, and holding the same by deed, devise, descent, contract, bond or agreement, from or under any person claiming title, as aforesaid, derived from the-records," etc.
    3. Those “holding the same under sale on execution, against, any person claiming title, as aforesaid, derived from the records.” etc.
    4. Those “ holding any land under any sale for taxes.”
    5. Those “ holding the same undor sale and conveyance made-by executors, administrators, guardians, or by any other person or persons, in pursuance of any order of court or decree in chancery.”
    Was the defendant, prior to December 29, 1834, an occupying-claimant within these provisions? To which of these classes docs-he belong? Not cortaiuly to the first. He had-not “a plain and connected title,” in law or equity, “derived from the records of ■some public office.” Legal and equitable titles are *oach protected. A legal title is the means whereby the owner of lands ■hath the just possession of his property; 2 Blackf. 196. Burnet and Spencer, having no color of title, could not authorize Newell to make a legal title, and consequently the defendant had no legal title. But to be protected by the statute, his title must be “derived from the records of some public office.” The title bond was not a title capable of being made a record in a public office. There is no law authorizing tille bonds to be recorded by county recorders; ii recorded they are not notice. The title bond gave defendant no equitable title to the land. An ■equitable title is a “ right in land which, not having the properties of a legal estate, requires the aid of a court of chancery to make it available.” Chance^ could not compel a specific performance of the title bond against Burnet and Spencer; having no color of title, they could not convey an equity in the land.
    The second class of claimants protected by the statute are those “holding lands by deed, devise, descent, contract, bond, or agreement,” under the first; and as it is not protended that Burnet and Spencer had or claimed any title, defendant is not within this class.
    As to the third and fifth classes, it is not pretended that defendant is within their provisions. It is conceded that his tax title brings him within the fourth class as to the improvements made since it accrued. As to the improvements prior to December 29, 1834, the defendant is not therefore an occupying claimant within the letter of the statute; nor is he within its spirit or reason.
    In construing laws, courts will look at the effects and consequences of their construction to determine the intention of the legislature. What would be the effect of a decision that defendant should receive compensation for improvements made before his title accrued? From anything that appears in the agreed ■statement, the land may have been entered an.d patented before or after the time when defendant first took possession. If after, then the patentee must be kept out of possession until he pays for improvements made by a squatter., *The title of the statute under-consideration is “an act for the relief of occupying claimants of land;” such a decision would make it “an act for the relief of squatters.” It was intended, not for occupants alone, but for claimants of land. ■ Squatters are occupants, but not claimants of land, they are not therefore protected by it. The manner of claiming is pointed out by the statute, and the squatter is excluded from its provisions. Any other construction would invite hordes of trespassers on the government land ; would legalize plunder, and erect a mighty barrier to their sale. A principle so wholly subversive of public policy can never be tolerated. The principle is the same in this case. Powell is therefore a trespasser, seeking to “take advantage of his own wrong,” and is not. within the reason or spirit of the statute.
    To decide that an occupying claimant is entitled to pay for improvements made before bis title accrued, would also involve the-absurdity that a title might accrue before land was entered or patented. If a title might accrue, it might become the subject of litigation and would be controlled by the statuto of limitations,, which is in direct opposition to the authorities. Lessee of Wallace v. Miner, 6 Ohio 366, 7 Ohio 249; Lessee of Thompson’s heirs v. Gotham, 9 Ohio 170. The case of Lessee of Shaler v. Magin, 2 Ohio 236, has been already sufficiently discussed.
   Read, J.

It is contended by counsel for the plaintiff that, under the occupying claimant law, the defendant.is not entitled to payment for valuable and lasting improvements made upon the premises prior to December 29, 1834, because, up to that period from the year 1820, he had occupied under no color of title whatever derived in the manner specified in the statute.

This presents the simple question whether, upon a fair construction of the occupying claimant law, a person in possession of land under no color of title whatever, and subsequently acquiring such title as brings him within the statute, is, upon *eviction by superior title, entitled to compensation for such valuable-improvements as he may have made upon the land whilst in-possession, without color of title, prior to the acquisition of such title-as confers upon him the benefit of' the statute? Is the occupying claimant entitled only to compensation for such improvements as he may put upon the premises whilst actually in possession under such title as the statute contemplates; or, will the lact of his being in such possession at the lime of the rendition of the judgment entitle him to compensation for all improvements he may have put upon the premises?

The equity of the statuto embraces all improvements made in the honest belief of ownership, if, at the time’of rendition of judgment, the occupant is in possession under such title as brings him within the meaning of the statute. If such a state of facts exist as to call the statute into action, it never stops until it has worked out complete equity and justice, and embraced the entire improvements, beneficial to the successful claimant, and honestly made. Any other construction would permit an^honest purchaser of land, buying irom one, without color of title, who sells from mistaken belief o1 ownership, to be swept out of the hard toil of years expended in improvements made for the provision of his family or the repose of age.

The statute is to be so construed, whenever a case comes within its letter, that the person receiving the benefits anS advantages of improvements shall make compensation. It rests on the broadest equity; and in the language oi the court in Longworth v. Wolfington, 6 Ohio 10, may justly claim a liberal construction. The court in that case say, the law of this state is framed to cover every case where a party is evicted from the possession of lands which he had improved in the faith that he was the owner.

In the case of the Lessee of Shaler v. Magin, 2 Ohio 236, the court say, wo discover nothing in the statute that limits the claim of the occupying claimant to a compensation for such improvements as were made after the commencement *of his title. The statute is in the present tense, “when any occupying claimant being in quiet possession of land,” etc. The exhibition of title is at the rendition of judgment. There is nothing in the law that excludes a right to receive pay for improvements made by the tenant or the person under whom he claims, at any time before the commencement of the suit. '

Thus our own court has put a construction upon this statute which embraces this ease, and authorizes a compensation for improvements from the time the delendant went into possession in 1820. We adhere to these decisions as a correct exposition of the statute.

The motion to set aside the assessment of the jury is overruled, and it is ordered that the amount, so assessed, bo disposed of and paid according to the provisions of the statute for the relief of occupying claimants. Judgment entered accordingly.


source: Caselaw Access Project

author: Birchard, J.

license: Public Domain

text:
    Levi Glover v. Aaron Moses.
    Where a plaintiff recovers less than twenty dollars, in a jury trial before a justice of the peace, the defendant can not appeal.
    A declaration filed in the common pleas by the plaintiff, will not, on such appeal, give jurisdiction#
    This was an application to the Supreme Court of Guernsey-county, for a writ of error. The case is reported from the judge’s minutes.
   Birchard, J.

The facts appearing by the record are these: An action of trover for a quantity of tobacco, the plaintiff claiming $25 damages, was brought before a justice of the peace. The defendant demanded a trial by jury, which was had, and a verdict was rendered for the plaintiff for $12, upon which judgment was entered, and for the costs, taxed at *$27.45. From this the defendant appealed. Plaintiff .filed his declaration, and moved to quash the appeal; which motion was granted. Two errors are assigned.

1. That the court did not sustain the appeal.

2. That the appeal was quashed alter declaration filed.

Held, by all the judges :

1. That the recovery being for less than $20, the court of common pleas could not take jurisdiction by appeal.

2. I hat the filing of a declaration could not confer jurisdiction ; and that, therefore, there was no error in dismissing the suit as soon as their attention was called to that fact.

Non allocatur.


author: Wood, J.

text:
    Abraham Stauffer v. Bowen Eaton, and others.
    Where a vendee of land is in land is in possession, under a contract of sale remaining open and in force between the parties, he is not liable to the vendor, in an action on the case, for an injury to the property.

      'The vendor, in such case, has not a reversionary interest for an injury of ■which ho can recover damages.
    Nor can he support an action for such damages, in the nature of an action for waste.
    This is an action on the case reserved from Trumbull county. ■
    Tho declaration has three counts. To the first tho defendant demurs; and to the second and third counts, pleads non assumpsit. The questions for decision arise upon the first count, which is as follows:
    “ The said plaintiff complains, for that whereas, before and at the timo of the committing of the grievances by tho said defendants, as hereinafter mentioned, certain premises, embracing *about three and one quarter acres of land, with a steam .■saw arid grist-mill, and two dwelling-houses thereon, with the .appurtenances, situate in the township of Canfield, in the county of Trumbull, aforesaid, were in the possession and occupation of .a certain person, to wit, the said Bowen Eaton, under and by virtue of a contract for the sale and conveyance of the same to the .said Isaac Eaton, made and executed by the said Bowen Eaton •and the said plaintiff, on or about August 21, A. D. 1889, wherein and whereby the said Bowen Eaton agreed to make, or cause to be made, in thirty days from the date of said contract, to the said plaintiff, his heirs and assigns forever, a good, legal and warranty deed of about fifteen acres of land, situate in the county of Trumbull, .Aforesaid, with a furnace thereon, and also his interest and claim in and to certain iron oro and flowed ground (reserving, however, fihe steam engine, with all its appurtenances, and also the flasks .and patterns), and to give said plaintiff immediate possession thereof; and the said plaintiff therein and thereby agreed, in thirty days from the date of said contract, and upon the aioresaid deed of said premises, lurnace and privileges being tendered to him, to pay to the said Bowen Eaton, or his order, the sum of $1,0U0, and at the same time make, or cause to be made to the said Isaac Eaton, his heirs and asigns, forever, a good, legal and warranty' deed of said premises, with a steam saw and grist-mill and two dwelling houses thereon, with the appurtena1 ces, situate in Canfield, a oresaid, and also to pay the said Bowen Eaton the sum oi $i,5U0, in twelve months from the date of said agreement, and to give him immediate possession of said premises, mill and dwelling-houses, with the appurtenances (ihc reversion ot said premises, mill and dwelling-houses, with the appurtenances, then and still belonging to the said plaintiff, in case the said Bowen should neglect to tender such deed, as a oresaid, and should abandon said contract, premises, mill and dwelling-houses), to wit, at Canfield, in the county of Trumbull, amresaid. Yet the said deiendanis well knowing the premises, and *that the said Bowen Eaton had wholly neglected to tenderte said plaintiff such deed, as aforesaid, and had abandoned said coniract, and was about to abandon said promises, mill and dwelling-houses, but contriving, and wrongfully and unjustly intending to injure, prejudice and aggrieve the said plaintiff in his reversionary estate and interest of and in the said premises, null and dwelling-houses, with the appurtenances, while the said premises, mill and dwelling-houses were so in the possession and occupation of the said Bowen Eaton, under and by virtue of said contract, and while the said plaintiff was so interested therein, as aforesaid, by reason of the neglect of the said Bowen Eaton to tender such deed, as aforesaid, and of his abandonment of said contract, and by reason of the determination uf the said Bowori Eaton immediately to abandon said premises, mill and dwelling-houses, to wit, on February 1, a. d. 1840, and on divers other days and times between that day, and bcloro the commencement of this suit, at Canfield, in the county of Trumbull, aloresaid,. wrongfully and unjustly, without the leave or license of, and against the will of the said plaintiff, tore down the machinery by which the said mill was propelled, and took and removed the same away, and took and removed away the millstones, mill-irons, bolting-cloths, and screen, and broke, cut and destroyed the timber work, frames and gearings appurtenantand belonging to said mill; and cut and broke divers large holes through the sides and end of said mill building. By means of which said several premises, the said plaintiff hath been and is greatly injured, prejudiced and aggrieved in his said reversionary estate, and interest o- and in the said premises, mill and dwelling-houses, with the appurtenances, so in the possession and occupation of the said Bowen Eaton, as aloresaid, to wit, at Canfield, in the county of Trumbull, aforesaid.”
    Crowell ■& Abell, Tod & Hoeeman, for defendants, in support. of demurrer to the said count:
    The declaration avers that, at the time of the committing of the grievances complained of', the three acres of land and the *mills, e)c„ were in the possession and occupation of'Bowen Eaton, one of the defendants, by virtue of a contract to sell and convey the same to said Isaac Eaton, by said Bowen and plaintiff, by the terms of which, Bowen Eaton, within thirty days from August 21, 183!), was to deed to the plaintiff fifteen acres of land, with a furnace thereon, reserving the engine, flasks, and patterns, and to give immediate possession; and the plaintiff was, at the same time, and on receiving said deed, to pay said Bowen $1,000, and to deed to said Isaac Eaton said three acres, etc., and to pay said Bowen, twelve months from the date of said agreement, $1,500, and to give him immediate possession, the reversion still belonging to the plaintiff in case said Bowen should neglect to deed, and should abandon the contract.
    The declaration xurther avers, that Bowen Eaton neglected to-tender the deed, had abandoned the contract, and was about to-abandon the premises; and being still occupying the promises, the defendants, to injure his reversionary interest, on February 1, 1840, and on divers other days, tore down the machinery of the-mill and took away the millstones, mill-irons, bolting-cloths and screen, and cut and destroyed the timber work, frame, gearing, etc.
    This count is clearly one in case for waste. It sets forth that Bowen Eaton is the tenant, if in fact there be such a relation subsisting between any oi the defendants and plaintiff as that of landlord and tenant. The other defendants are all strangers to-the title, and have neither possession nor the right to possession^ and can not be sued in such a form of action. If they are liable to any action, it must be to the action of Bowen Eaton, the tenant in possession.
    It is, says Kent, a general principle that the tenant is responsible to the reversioner for all injuries amounting to waste done to the promises during his term, by whomsoever committed. “He has his action over against the wrongdoer.” The landlord can not protect the property against strangers; 4 Kent’s Com. 77. The reason of the rule is iounded upon the necessities of the case, and the well-established distinctions ^between trespass with force and trespass on the case. The facts charged upon all the defendants, except Bowen Eaton, is a trespass, and the aetioa should correspond with the fact. If, then, the plaintiff can not maintain trespass against them, because out of possession, and it is admitted he could not., this is no reason why he should be allowed to violate the established forms of law and resort to case-It was his own folly to place the possession in another, so as to prevent his bringing his.action of trespass, or to enable that tenant to give a license which would prevent the bringing and sustaining such action ; and he must abide the consequences. The parties dealing with a person having such evidence of right, may ■not be tort feasors, and if not, can not be sued jointly with their vendor, lor property which they purchased, paid for, and took away in trood faith.
    To sustain a count in case in the nature of waste, it is necessary that thero should be a privity of estate between plaintiff and defendant; and although it is not necessary to set out at length the respective title of each, it is always necessary to state their relation to each other as landlord, or reversioner and tenant, or occupant, and to aver occupancjr by the defendants, at the time the grievances were committed which aro complained of; Green v. Cole, 2 Saund. 252, b, note. In this count, the pleader, so far from showing a relation of tenant or occupant between Isaac Eaton and the plaintiff, sots forth that Bowen Eaton was exclusive occupant under a contract of sale made between him and plaintiff, which was then in force, and for aught that appears, will be fully complied with and perfected, if the plaintiff will pay the $1,000 stipulated by him, and also, perform the other concurrent act to which his contract bound him. The defendant, Bowen Eaton, was in lawful possession as a purchaser, and had a right to use the premises, from the showing of the pleader, while the contract remained unrescinded. It did so remain at the commencement of the suit; for, in the first place, the cestui que trust was Isaac Eaton ; and it was not competent for Stauffer, the plaintiff, and Bowen Eaton, to abandon the contract *and put an end to it against his will, or without his assent. The contract of sale was then in force — was executed, so far as possession was concerned, and could not be rescinded by the act of the parties, and, ■consequently, the true remedy of the plaintiff was a bill to enjoin waste and enforce a specific performance; because, in that way only could he act consistently with truth, and the rights of all the parties in interest.
    There is a total absence of all privity of estate between plaintiff and part of defendants, and for this the count is bad upon demurrer* 7 Bac. Abr. 267, 268; 2 Inst. 300, 1, 2; Fitz. 129; Co. Lit. 54; 13 Johns. 260, 264; 12 Johns. 371.
    Again. If it be held that the declaration sufficiently avers the abandonment of the contract, we then say that trespass, quare clausum, and not case, is the proper form of action; for the contract being abandoned, Eaton could only bo tenant at will, and waste determined that estate, so that in law the possession becomes, eo instante, vested actually in the landlord, and he can maintain trespass. 9 Johns. 36; Ib. 331; 7 Cow. 229; 11 Mass. 519.
    It is important to preserve the distinction between actions; and no courts have felt the necessity of so preserving them more than our own courts. It is manifest that the action proper to be brought, in many cases that will arise, will be a doubtful and perplexing question to determine, if ancient rules are to be broken in upon. Ancient rules will be broken down if it be settled that a case proper for trespass, vi et armis, and one that could be1 maintained, may be converted into an action on the case at the pleasure of the party. Such a doctrine would be mischievous in-the extreme.
    P. and R. Hitchcock & Wilder, for plaintiff, contra:
    It is manifest, from the case set forth in the count, that the-plaintiff has sustained a serious injury, and the question arises 'whether he is without redress. Il he can have redress, we know of no other way in which he can obtain it, except by *pursuing the course adopted in the present instance of prosecuting an action on the case.
    But it is said that this is an action in the nature of an action of waste, and that no action of waste can be sustained, except where there is the relationship of landlord and tenant. It is an action brought by the vendor against his vendee and others, for an injury to the property, committed after tae vendee had abandoned the contract, and when he was about to leave the premises. Thus injury may have been waste, as it had a tendency to deteriorate the property, and so does every injury to property, whether caused by a direct trespass or incidentally in the performance if a lawful act.
    An action on the case for a nuisance, is based upon the hypothesis that the nuisance complained of has a tendency to< deteriorate the value of the plaintiff’s property; still, it is not an action of waste, nor can it be said to be in the nature of an action of waste.
    Whore the relation of landlord and tenant exists, if a third person enters upon the land and destroys the timber, or does other acts which diminish the value of the estate, the landlord may have an action on the case to recover damages for the injury done to the inheritance. He can not have an action of trespass, because he is not in possession, but the tenant may.
    The case before the court is one substantially of (his character. Stauffer was the owner of the land, with the mill, building, and other appurtenances. Ho, by contract, had sold to Bovven Eaton, and put him in possession. Eaton, however, had failed to perform, the contract; he had, in fact, abandoned it. Although he was still in possession, he was about to leave. In this situation the injury was committed — not by Eaton alone, but by him and oth< r persons. How, if we admit that, owing to the relation between Bowen Eaton and the plaintiff, this suit can not be sustained against him, it does not follow .but that it may be sustained against the others, who were strangers. If liable at all, the defendants are liable as in trospass, jointly and severally; and all having demurred jointly to *the declaration, if any of them are liable in this form of action, the demurrer should be ■overruled.
    But we do not admit that Bowen Eaton is not liable. He, with others, have inflicted a wrong upon the plaintiff, and there is no other way in which redress can be obtained. The action ol tres'■pass on the case is the only appropriate remedy. It may be that no case precisely similar has been before the court. We confess that we have not found any. But still this can be no good reason why the court should not sustain the suit.
    The case of Yates v. Joyce, 11 Johns. 136, was of this character. Tates was the assignee of a judgment, which was a lien on the real estate of John and Darcy Joyce, and was about to take out execution, and have it levied upon a certain lot in Schenectady, the property of John and Darcy Joyce. G. Joyce, knowing that the judgment was a lien, and that the judgment debtors had no other property with which to satisfy the judgment, after tho execution was levied, demolished a barn upon the lot, of the value, of' $300, thereby diminishing to that extent the security of Tates. Tates commenced suit against G-. Joyce, and stated these facts in his declaration. To this declaration there was a demurrer, but the demurrer was overruled.
    In deciding the demurrer, the court say: “This appears tobe an action of the first impression. The books do not furnish a precedent in its favor. It is obvious, however, from the statement of the plaintiff’s case in the declaration, the truth of which is admitted by the demurrer, that he has sustained damage by the act of the defendant, which he alleges was done fraudulently, and with intent to injure him. It is the pride of the common law that, wherever it recognizes or creates a private right, it also gives a remedy for the violation of it.” Again, the court say: “ If there is any remedy lor him, ‘that is, for the plaintiff,’ it is in this form of action only that ho can obtain it. Trespass will not lie, for the plaintiff was not in possession.” And, again : “ It is a sound principle that, where the fraudulent misconduct of a party occasions an ^injury to the private rights of another, he shall be responsible in damages for the same.”
    Now, in the case before the court, there can be no doubt, as that case is stated in the first count in the declaration, that the private rights of the plaintiff.have been infringed, and that he has sustained a grievous wrong by the wicked, fraudulent, and wrongful acts of the defendants. Under such circumstances the court of New York sustained an action on the case to redress an injury, although no precedent could be found directly in point. And they did it upon the principle that wherever the common law recognizes a right it gives a remedy for the violation of that right, and that remedy, where no other form of action is prescribed, is by action on the case. 1 Com. Dig. 178.
    It seems to us that justice requires, in this case, that the demurrer should be overruled, and the defendants ordered to plead to the declaration.
   Wood, J.

In the count under consideration, it is recited, in substance, that certain premises, embracing three acres and a quarter of ground, with a steam saw and grist-mill, and two dwelling-houses thereon, with the appurtenances, situate, etc., were in the possession and occupancy of the said Bowen Eaton under a contract lor the sale and conveyance of the same to Isaac Eaton, which contract was executed by the said Bowen Eaton, and the said plaintiff, Stauffer, on August 21, 1839; and by which contract the said Bowen Eaton agreed to make, in thirty days from the date of said contract, to the said plaintiff, his heirs and assigns forever, a good warranty deed of about fifteen acres of land, situate, etc., with a (urnace thereon, and to give said plaintiff immediate possession thereof, and the said plaintiff, by said contract on his part, agreed, in thirty days from the date of said agreement, and upon the deed of said promises, furnace, etc., being tendered to him, to pay to said Bowen Eaton, or his order, the sum of $1,000, and, at the same time, to make to the said Isaac Eaton, his heirs and assigns, a good warranty deed of said premises, with s steam *saw and grist-mill, and two dwelling-houses thereon, with the appurtenances, situate, etc., and also pay the said Boweü Eaton the sum of $1,500, in twelve months (rom tho date of said agreement, and give him immediate possession of said premises, with the appurtenances, etc., the reversion of said premises, then, and still belonging to the said plaintiff, with the said mill, dwelling-houses, and appurtenances, in case the said Bowen Eaton should, neglect to tender such deed, as aforesaid, of the said fifteen acres, with the appurtenances, etc. Yet iho defendants, well-knowing the premises, and that the said Bowen Eaton had wholly neglected to tender to said plaintiff such deed, and had abandoned said contract, and was about to abandon said premises, mill, and dwelling-houses, but contriving, and wrongfully and unjustly intending to injure, prejudice, and aggrieve tho plaintiff in his reversionary estate, and interest of, and in the said premises, mill, and dwelling-houses, with the appurtenances, while the same were in the possession and occupancy of the said Bowen Eaton, under, and by virtue of said contract, and while the said plaintiff was so interested therein, as aforesaid, by reason of the neglect of the said Bowen Eaton to tender such deed, as aforesaid, and of his abandonment of said contract, and by reason of the determination of the said Bowen Eaton immediately to abandon the said premises, mill, and dwelling-houses, to wit, at, etc., on, etc., wrongfully and unjustly, without the leave or license of and against the will of, the said plaintiff, tore down the machinery, by which the said mill was propelled, and took and removed the same away, and took and removed away the millstones, mill-irons, bolting-cloths, etc., and broke, cut, and destroyed the timber work, frame, and gearing belonging to said mill, etc. By means of which said several premises, the plaintiff is greatly injured and agrieved, in his said reversionary interest and estate, in the premises aforesaid.

We have thus spread out the declaration nearly in its words, 'and we think it requires more than ordinary legal astuteness to discover any merits in the plaintiff’s case.

*The count in the case at bar was, probably, intended to redress what the plaintiff supposed was, and what he denominates, an injury to a reversionary interest. If such wore the injury, and such the action, whether the estate be realty or personalty, numerous authorities may be cited to sustain the position. But what is the case made?

On August 21,1839, the plaintiff contracted with the defendant, Bowen Eaton, to convey to Isaac Eaton tho premises, or locus in quo. Tho deed was to be executed in thirty days. Under this contract Bowen Eaton went into possession.

By the same contract the defendant, Bowen Eaton, agreed to convey to the plaintiff fifteen acres of land, with a furnace, etc., and to execute the deed in thirty days from tho date of the contract. The plaintiff to have immediate possession, and when Eaton should tender the deed of the furnace property, the plaintiff to deliver the deed of the mill property, and pay to Eaton 81,000, and 81,500 more in twelve months, and give to Bowen Eaton immediate possession of the mill property. It will thus bo seen this was an exchange of land, and each party acquired the immediate and lawful possession under the contract. The covenants are, throughout, mutual, to be performed at the same time.

It follows that neither party could abandon, rescind, or put an end to this contract without the consent of the other ; or, without doing some positive act, on his part, by which to put the other in the wrong. Before the plaintiff could forfeit the defendant Eaton’s contract, it was necessary for him to tender the deed of the mill property, offer to pay the 81,000, and demand performance by the defendant, Eaton.

This was not done, and, from anything that appears, the contract is still a valid, binding, and obligatory contract, and either party, by performance, or an offer to perform, on his part, may comjjol the other to execute it. The defendant, Bowen Eaton, being in possession as vendee, though ho has not the legal title, is, while such contract continues open, tho solo owner of the estate in equity. I say as vendee, because *he bought tho property, and he paid for it, and he was put in possession, though the deed was to be made to Isaac.

A purchaser thus in possession may control the property, build up, or tear down-, and use it in any way conducive to his own feelings, or interest, provided he do not injure another by such use.

The plaintiff avers that the defendant intends to abandon the property, and not perform the contract, and that these acts are an injury to his reversionary interest; but the fact is, he has no such reversionary interest at present — ho had none when the suit was brought, and it may at least be doubtful whether he ever will have any to injure.

Such contingencies as these, so remote, so uncertain, can be neither seen, felt, nor'handlod by the law. Supposed injuries to such contingencies can not, at law, be measured, and the law is incompetent to mete out redress.

In cases somewhat analogous to this, courts of equity will interfere by injunction, to stay waste, or groat injury to property, by a vendee who is insolvent, until he performs, or gives security to perform, his contract; but I know of no ease in equity, sustained against a solvent vendee, who can be made to respond in damages, or by a comjilianco with his contract.

In the case at bar it is clear to us the action, so far as this first Count in the declaration is concerned, can not bo sustained for an ■injury to a reversionary interest.

Can it bo viewed in any more favorable light for the plaintiff? Suppose wo call it an action of waste, as suggested by one of the ■learned counsel? At common law, waste would lie against tenants in dower, tenants by the courtesy, guardians in socage or chivalry, etc.; but it would not lie against a lessee for life, or ■years, and the reason was, these estates were created by grant, -,and the grantors might have secured themselves against waste by -special provision in the grant.

'It was only when the estate was enacted by law, that the action ■of waste was maintainable, until the 6 Eliz. 1, when it was given by the statute of Gloucester, against tenants for life, or years, or per autre vie. 4 Kent, 79.

^-'Chancellor Kent supposes the provisions of this statute were imported by our ancestors, and ingrafted, with the- whole body of the common law, into our system of jurisprudence, as appli cable to our local circumstances; but however this maybe for the purposes of the case at bar, it is of little moment to inquire; for, if its provisions were incorporated into the statutes of Ohio, it could hardly be brought up to the rescue of this count in the declaration. ■

Between vendor and vendee, the latter is not a tenant of the former. The vendor, after sale, has no interest in the estate, unless it be an equitable lien for the purchase money, and so far as this lien is concerned, the vendee holds the land as trustee to the vendor, and not as tenant, lessee, guardian in socage or chivalry — ■ terms that are strangers to our system.

Waste is an incident to certain classes of estates, but not to such an estate as the vendor holds in the land, after sale, or conveyance. Rights resulting from a certain relation can only be claimed when such relation exists, and no relation exists here to authorize such action.

We are of opinion the first count is bad, and that the demurrer should be sustained. Case remanded.