Jackson, ex dem. Van Denberg, Van Vecten, and Elting, against Bradt

Jackson, ex dem. Van Denberg, Van Vecten, and Elting, against Bradt. A tenant entering under a person claiming the whole in severalty, is not entitled to the value of his improvements from persons recovering as co-tenant. See this case, ante, p. 169. The point ivas, whether the defendant, in consequence of his entry in 1771, or 1772, by permission of Bernardus Bradt, was entitled to the value of his improvements, under the acts of the 16th March, 1785, and 10th of February, 1791. Woodworth., (Attorney-General,) for the defendant. The construction of the acts, it may be said, is to be confined to lands held by tenants' in common, whereas Bernardas Bradt was solely seised of the legal estate. Allowing this, still it is was in trust for the persons to whom he was, by the decision of the court of appeals, ordered to convey. Though the legal estate was in him, the trust was for others, and on the rule that what ought to be done is to be held as done, he must be considered as a tenant in common from the very first moment of his title. The principles of the statutes apply to equitable as well as legal estates. They were framed for the purpose of compensating the one by whose exertions many might be benefited. Henry and Van Vechten, contra. The words of the act are against the position contended for. It was passed in favor of those who held in conjuction with others, not in opposition to them. The very circumstance of denying our right is sufficient to destroy the equity insisted on. An equity cannot arise from an adverse and wrongful holding. Had the improvements been intended to have been allowed for, the court of appeals would have saved 'them. [MAJORITY — Thompson, J.] Thompson, J. delivered the opinion of the court. Under the facts in this case the question is, whether the defendant stands in a situation which entitles him to a compensation for his improvements under the statutes referred to? We think not. At the *time Bernardus Bradt put the defendant into possession, he did not claim to hold either an estate in joint tenancy or in common in the premises, but he claimed the whole in seve-ralty. It was held in like manner by his children, until the year 1797, when they were compelled to convey a moiety to the lessors of the plaintiff, and those under whom they claim. The cases contemplated by the statute were thsoe where a part owner or a proprietor who recognized' the interest, or right of others with him, should make or authorize improvements to be made. The statutes look to a partition, and the uncertainty where the shares will fall. In such cases good faith requires indemnity for improvements, but not so where the improvements have been made in defiance of, and adversely to, the claims of every body else. To compensate the defendant for his improvements, prior to 1798, would be repugnant to the decree of the court of appeals, and to the defendants’ deed given in pursuance of such decree. It is presumable that all equitable claims, which the parties to that decree might have had, were taken into consideration. The deed is absolute and unconditional, and must pass the improvements as well as the fee of the land. Besides, the plaintiffs showed title to but ten twelfths of the premises, and, therefore, come into possession only as tenants in common with the defendant, and it cannot be just that he should receive compensation for all his improvements, and still retain two twelfths of them. Ho rule of apportionment is appointed by the act. Ct contemplates only cases where the rights, or shares, in the premises, are reduced to estates in severalty, and ex ■elusive possession claimed. The opinion of the court, therefore, is, that the defendant is not entitled to compensation for his improvements. Application denied.