Kelson v. Watson — 1 Cole. & Cai. Cas. 368

Majority

p. 368

Kelson, on the demise of Jacob Spilsbury and others, v. Aaron Watson.

Headnote

THIS was an application to be paid for the value of improvements pursuant to the provisions of the act of the 5th of April, 1803, entituled, “ An act grant-G< ing relief to certain persons claiming title to lands

p. 369

tG in the counties of Cayuga and Onondagathat till the improvements were paid for, execution on the suit of possession might be staid, and that the judgment on the verdict obtained, might be entered without any costs of increase.

W. Woods, in support of the motion,

read an affidavit, stating, that the patent for the lands, to recover which the action was brought, was in the name of Jacob Spilsbury, who died previous to the 27th of March, 1803. That the defendant in 1797, settled on the premises, under a bona fide purchase, for the consideration of 387 dollars 50 cents, and was in possession. That the improvements had not been, appraised, nor had the value of them been tendered or paid.

Hildreth, contra,

read an affidavit, mentioning, that previous to bringing the suit, an offer was made to pay the value of the improvements. He urged also, that nothing was disclosed to the court evincing a claim in fee, or that the estate of the defendant was such, as would, according to the act, entitle him to the value of his improvements. But, admitting it was, it ought to be made appear in a legal manner. This could not be by the mere affidavit of the party. It must be proved by the same evidence as titles are, in other cases, substantiated. That this not being done, the defendant had not made out any right to what he claimed.

p. 370

W. Woods in reply.

The act points oüt no par ticular mode, and this has been adopted.

Let the plaintiff have leave to perfect his judgment with costs to be taxed, and let áÚ other proceedings be staid, that the defendant may have it in his power to apply to the chancellor, under the second section of the act, as he is entitled te the benefit of its provisions. As, however, the plaintiff, previous to the cómitiencemént of his action, offered to pay the value now deihanded, Wé think him entitled to his costs, and we Wish it to lie understood, that in future, the claims Of defendants to the Value of their improvements under this act, will depend upon the report Of the circuit judge.