In Jackson v. Loomi's, 4 Cow. 168, an action of trespass for mesne profits against a bona fide purchaser, it was held that he should be allowed against the plaintiff, in mitigation of damages, the value of permanent improvements, made in good faith, to the extent of the rents and profits claimed by the plaintiff. Green v. Biddle, 8 Wheat. I.
In Rathbun v. Colton, 15 Pick. 472, 485, it was decided that when the rent of a trust estate is increased in consequence of improvements made by the trustee, the beneficiary may be put to his election, either to allow the trustee the expense of such improvements, or be deprived of the increase of rent obtained by means thereof; that the question was not whether the trustee has a right to make a charge for the improvements, but whether the plaintiffs were entitled to receive any benefit for them, they refusing to contribute their share towards the expense.
It seems, however, that courts of equity have not confined the doctrine of compensation for repairs and improvements to cases of agreement or of joint purchases, but have extended it to other cases where the party making the repairs and improvements has acted in good faith, innocently, and there has been a substantial benefit conferred on the owner, so that in equity and right he ought to pay for the same. 2 Story Eq. Jur., §§ 1236, 1237, 799 b; Coffin v. Heath, 6 Met. 76, 80. And in 2 Story Eq. PL, § 799 b, n. 1, it is said: "In cases where the true owner of an estate, after a recovery thereof at law from a bona fide possessor for a valuable consideration without notice seeks an account in equity as plaintiff against such possessor for the rents and profits, it is the constant habit of courts of equity to allow such possessor, as defendant, to deduct therefrom the full amount of all meliorations and improvements which he has beneficially made upon the estate, and thus to recoup them from the rents and profits. . . . So, if the true owner of an estate holds only an equitable title thereto, and seeks the aid of a court of equity to enforce that title, the court will administer that aid only upon the terms of making compensation to such bona fide possessor for the amount of his meliorations and improvements of the estate beneficial to the owner." This is on the old-established maxim in equity jurisprudence, that he who seeks equity must do equity. Hannan v. Osborn, 4 Paige Ch. 336; Deck's Appeal, 57 Penn. St. 468, 472; Peyton v. Smith, 2 Dev. & Bat. Eq. 325, 349; Hibbert v. Cooke, 1 Sim. & S. 552.
The sum of $370 for the repairs may be deducted from the income, if it amounts to that sum; if not, then to cancel the income, whatever it may be.
The claim for insurance should be disallowed. It does not appear that it was procured for the plaintiff, or in her interest, or with her knowledge, or that she has ever received or accepted any benefit arising from it.
5. Transfer, Descent, etc.
41 New Jersey Equity 392. - 1886. [Reported herein at p. 685.] 1
17 Missouri, 13. - 1852. [Reported herein at p. 511.] 2
2Sec also Ferguson v. Tweedy, supra, p. 628. Chap. 472, laws of 1880. - Ed.
2. Compulsory.1 WALKER v. SHERMAN. 20 Wendell (N. Y.), 636. - 1839. [Reported herein at p. 218.] 2
1 See New York Code of Civil Procedure, §§ 1532-1595. - Ed.
2 See also Wass v. Bucknam, p. 640, supra. For a sketch of the history of compulsory partition, see Mead v. Mitchell, 5 Abb. Pr. (N. Y.), 92 (aff'd 17 N. Y. 210). - Ed.