delivered the opinion of the Court.
The report states the tenant to have been in actual possession of the demanded premises, for more than six years prior to the commencement of the action. How much longer does not appear. It does not appear that he entered under any contract .with the de-mandant ; or with his knowledge, consent or privity. The tenant was therefore entitled to the benefit of the act for the settlement of certain equitable claims, arising in real actions, unless he has precluded himself therefrom by the negotiations, proved to have taken place between him and the demandant. 'The mere attempt to make his tortious possession a rightful one, ought not to prejudice him. The act is made for cases, where the title is in one, and the possession in another. If the tenant concedes that he has no valid title, either to the proprietor or to others, we do not perceive how it can have the effect to change his relations or his rights. If he surrenders up his possession, and becomes the tenant of the owner of the fee, then indeed he assumes the duties which belong to that relation, and can set up no other interest, than what he derives from his lease. So if he enters into any new contract in respect to the land binding upon him, which is inconsistent with his equitable claims, he may be held to have waived them. But we cannot regard his offer to perfect his defeasible title by purchasing that of the demand-*124ant as of this character. It does not appear that the offers were accepted ; or any further attempts to purchase made by the tenant ; or that these propositions were at all relied on by the demandant.
In Knox & al. v. Hook, the grantor of Hook went on to the land originally under the ancestor of the demandants. And in Shaw & al. v. Bradstreet, the value of the land had been ascertained and fixed between the demandants and the tenant’s grantor; and he had purchased with a full knowledge o,f this fact. It was there decided that this estimate should be conclusive as to the value of the' land ; but the increased value, by reason of the improvements, was also estimated for- the benefit of the- tenant. The contract in that case was not a mere offer on the part of the tenant or his grantor ; but one binding upon both parties. The question' reserved was, whether this evidence was of a conclusive character as to the value, as the judge had ruled on the trial, and the court held it to be so; and' sustained the opinion, of the judge. They further go on to state that the tenant was not entitled to the benefit of the statute. This was. not the question presented to their consideration ; and it has. not therefore the authority, which an adjudication directly upon the point raised, carriés with it. But that case is sufficiently distinguishable from this. There a contract was made ; here it was only proposed.
It belongs to the court to decide, whether upon a given state of facts, an equitable interest of this kind has attached. In the present case, we are satisfied that it had, at the commencement of the action. The jury therefore were properly instructed by the judge to estimate the value, and the increased value, of the land under the Statute* Judgment on the verdict.