The opinion of the Court, Shepley, C. J., Wells, Rice and Hathaway, J. J., was drawn up by
The demandant is., seized of the fee against all persons except the mortgagee, and may maintain a writ of entry to recover possession against anyone not claiming under the mortgage. This principle of the common law has not been changed by the statute in relation to betterment claims. It does not prohibit the mortgager from maintaining an action against a disseizor, but does provide, by chap. 145, sect. 33, that if the tenant be evicted after the land has been abandoned to him, by a better title of any claimant, he may recover back the money he has paid to the demandant.
It is not within the power of the Court to engraft upon the statute any further provision than what it has provided for the protection of those claiming betterments.
According to the agreement of the parties the demandant is entitled to recover, and the appraised value of the land and improvements are to be made in conformity to it.