claim for the improvements. This went upon the favourite maxim of the Court of Chancery, that he who will have equity must do equity. But though no case, where the occupant was the plaintiff, is to be found before 1789, yet it is admitted there are certain maxims and principles of equity, which, combined with the peculiar state of land titles in Kentucky, would authorize a Court of equity to relieve. Yet it is quite evident, that a party coming with his bill for relief, after a recovery had against him at law, must have stood upon a very different ground than the complainants in the cases above referred to. His application must have been to the extraordinary powers of the Court; he must have come in under the rule, that he who will have equity must do equity; he would not have been permitted to gain by the loss of the other party." Upon a bill brought after a recovery in a real action, the account would have been carried back to the time of his first taking possession: complete equity would have been done by making a full estimate of the value of the rents and waste on one side, and of the improvements on the other; the want of notice of the defendant's title could not have been considered as important, since he would stand upon his judgment at law: but the decree would be for the balance of the account thus taken. After a recovery of mesne profits, in the action of tres a Locupletiorem neminem fieri cum alterius detrimento et injuria jure naturæ æquum est. L. Jure Naturæ, 206. De Dir. Reg. Jur. Antiq. 1823. Green V. Biddle. Green V. Biddle. 1823. pass, following a recovery in ejectment, if the occupant had not pleaded the statute of limitations, he might have brought his bill, and the matter would have been adjusted in the same mode; but if he had pleaded the statute, and thus deprived the true owner of a part of his indemnity, he could not stand before the Court as a party willing to do equity, and consequently could not have equity. But even supposing that a bill would be retained in such a case, most certainly the same rule of limitations which deprived the proprietor of a part of his damages, would also be applied to the improvements made before the time of limitation. Admitting, too, that with respect to questions between the owner of the title as complainant, claiming relief, as well touching the title as for the rents and profits, and the other party, all the cases cannot be reconciled, yet there is a very decided preponderance in favour of the doctrine now maintained; and with respect to a naked claim for improvements, there is no contradiction what ever. As to the terms "valid and secure," which are used in the compact, with reference to the rights and interests of land derived from the laws of Virginia, they must import the permanent validity and security of whatever is included in, or incident to, the complete enjoyment of those rights and interests. This validity and security is impaired by the acts of the State legislature, now in question. By the common law, connected with the statute of Virginia, before cited, the demandant, in a writ of right, was entitled to recover, Green Biddle. together with his seisin, such damages as the jury 1823. might think him entitled to, for the detention of the land, and for the waste committed upon it, extending back to the time when the occupant entered upon the land. But by the act of 1797, s. 1, he is to recover no damages for the use of the land before actual notice, nor even subsequent to that notice, unless the suit is brought within a year. By the third section of the act of 1812, his damages for the detention are not to commence until the final judgment or decree in the Court of original jurisdiction. Under the first act, his right to damages is greatly diminished; under the second, it is almost annihilated. But suppose the respective rights of the parties are tested by the settled doctrines of positive equity; the tenant, in the present case, seeking equity from a party who had a clear legal right, would have been compelled to do complete equity. He would have received an equitable allowance for his improvements, if bona fide made; but the judgment of the demandant would not have been disturbed; the value of the improvements would have been compared with the amount of his damages, and a decree rendered according to the result of that comparison. In the case of a recovery by ejectment, followed by the action of trespass for mesne profits, which was the undoubted right of the owner of the land, as the law stood in 1789, the right of the plaintiff is diminished by the acts now in question. Under the old law, he could not be restricted from inquiring into the damages sustained, from the time the defendant entered upon Green V. Biddle. 1823. the land down to the time of suit brought, unless the defendant pleaded the statute of limitations. But if the occupant insisted on that defence, he could have no remedy in equity. The act of 1812 also makes the giving a bond for the value of the improvements a condition to the recovery of possession, thus depriving the true owner of his preexistent absolute right to the appropriate writ of execution. It is clear, then, that the rights of the proprietor of the land are impaired by the statutes in question; they are neither determined by the same laws, nor by the same principles of equity incorporated into new laws. Nor can these statutes be supported on the principles of abstract justice. It is not only a maxim of the Court of Chancery, but of every wise legislator, that equality is equity. So, also, one ought not to gain by the loss of another, who was in no fault. From these two maxims, the corollary may be drawn, that where the respective capitals of two individuals are equal, and their occupations, skill, and industry are the same, their condition in the social state, (so far as it depends upon legislative regulations,) ought to be precise ly the same. Not that one may not benefit by turns of good fortune, without sharing his gains with the other; but that the law should not take from the one, to give to the other, rendering the one richer to make the other poorer, without some fault of the latter. Here the counsel illustrated the application of these principles, by putting a variety of cases which might occur under the statutes, to show the extreme injustice and ine- 182 quality of their operation. Nor does the fourth article of the compact, of 1789, warrant the passage of the acts under consideration. It merely gives to Kentucky the power of requiring lands to be improved and cultivated after six years. Tha this article does not apply to the present case may be shown by several considerations: (1.) The acts in question do not, by their terms, purport to be in execution of such a power. (2.) A power to require the owners of land to improve and cultivate for the general welfare, is one thing; and a power to take away the property of one citizen and give it to another, is a very different thing. (3.) A law requiring improvement and cultivation and declaring a forfeiture for non-compliance, would only be applied to unoccupied lands; whereas the lands to which alone the acts are applied are actually improved and cultivated. The true owner is, prevented by the acts of him who has usurped the possession from personal compliance. It may be contended, that there are certain ancient statutes of Virginia, recognising the same obnoxious principles with the recent acts of Kentucky. But the only statute at all partaking of this character was that (called) of the 13th of Charles II., but in fact passed immediately after the restoration. This statute was entirely retrospective in its operation, and was intended to apply to a peculiar state of things existing during the civil wars and the Commonwealth, as distinctly appears, both by the preamble and the enacting Green V. Biddle. |