delivered the opinion of the Court as follows, at the succeeding term in Cumberland, the cause having been continued nisi for advisement.
From the report in this case it appears that the title of the premises demanded is in the plaintiffs; that April 7, 1798, Abijah Grant conveyed the same by deed to Richard Major, who on September 2, 1807 by deed of mortgage conveyed all his right in the premises to the tenant and Matthew Cotierill; and that possession has accompanied the deeds.—It does not appear who made the improvements on the land in question; but the value of them and of the land has been estimated by the jury in the manner prescribed by law. The question before us is, whether the tenant is entitled to the benefits of the law under which the estimate has been made, in as much as Major, on the 28th of April 1803 made an agreement with the demandants for the purchase of the premises, gave security for the purchase money, and received a written contract from them to convey to him the lands on payment of the price.—It does not appear that Kav-anagh or Cotierill had any knowledge of this contract at the time of receiving the deed from Major or till the time of trial.
In the case of Knox v. Hook, 12 Mass. 329. it appeared that Bagley was the original settler, and contracted in writing with Knox for the purchase of the premises. Hook afterwards purchased of Bagley the improvements he had made.—Then Knox sold the land to Thorndike who contracted with Hook to convey the same to him on certain conditions which had not been per*351formed. The Court decided that Hook could not be considered as holding the premises “ by virtue of a possession and improvement” within the meaning of the law; but under the contract he had made.
In the case of Shaw v. Bradstreet, 13 Mass. 241. Cunningham was the original settler. He made a contract with the demand-ant for the land at a certain price; and after this and about two years before the commencement of the action he conveyed the premises to Bradstreet, who was then informed by Cunningham of the contract he had made with Shaw. The Court decided that “ Cunningham, by entering into the agreement waived “ all claims by virtue of his possession and that he and his “ grantee w'ere bound by his agreement.”—The case was considered as similar in principle to that of Knox v. Hook. The case at bar differs from Shaw v. Bradstreet in two particulars— first, in that case the tenant had express notice of the contract: in this, no such notice appears.—Secondly, in that, the tenant had been in possession only about two years after his purchase from Cunningham: in this the tenant has been in possession ever since April 1807.
We consider the two cases abovementioned as decided on correct principles and as having thus far settled the law upon this subject. Major, having waived all his rights under the statute, by the contract which he had made, could convey none to Kavanagh and Cotterill; but still, as Kavanagh was ignorant of that contract, and had been in the possession and improvement of the premises for more than six years prior to the commencement of this action, he stands like any other person in that situation, and is entitled to an estimate of the improvements he has made upon the land himself since the conveyance from Major. But as it does not appear by the verdict or the report, who made the improvements ; or, if they were made partly by the tenant, and partly by those under whom he claims, in what proportion they were made; the verdict must be set aside and a new trial granted, that this fact may be ascertained and a verdict given in conformity to the principles above stated.
New trial granted..