concurring specially. The ruling stated in the first division of the decision implies that the evidence might have been admissible if there had been other evidence or offer of evidence as to the amount paid for taxes and repairs. The writer can not assent to that view. Did the judge err in refusing to permit one of the defendants to testify: “I have paid the taxes and made repairs on the property” ? The evidence was offered to go in reduction of damages which the plaintiif might recover as mesne profits, the contention being that plaintiff could only recover net profits. The action is complaint for land, a statutory action of ejectment, a plain action at law, in which the plaintiff may recover by way of damages all such sums of money to which he may be entitled by way of mesne profits together with the premises in dispute. Code of 1910, § 5575; Code of 1933, § 33-104. Such plain*414tiff may not recover in a separate action “mesne profits which may have accrued to him from the premises in dispute.” § 5576 (1933, § 33-105). A claim in such an action for damages “by way of mesne profits55 is essentially in tort. After referring to these sections of the Code, it was said by Judge Powell in his excellent treaties: “We usually think of the expression ‘mesne profits5 as being equivalent to the word ‘rents,5 and as including only the natural profits of the land accruing to the tenant in possession between the dates of the commencement and of the termination of the possession held without right. It includes not only this, but more — it also includes all damages arising from trespasses committed by tlie tenant in possession pending his unlawful occupancy. For instance, the plaintiff may recover, by way of mesne profits, for the cutting of timber, the destruction of houses, and other acts of like character. In one case there is an intimation that where the defendant has been guilty of wilful and intentional wrong, punitive damages may be included in the recovery of mesne profits, and as the action sounds in tort, there seems to be no good reason why this intimation is not sound.” Powell on Actions for Land, 543, § 410. Ordinarily a wrong-doer may not profit by his wrong. If a defendant in ejectment could do so by charging plaintiff with sums he had paid for taxes and repairs during his wrongful occupancy, it would be possible, whether or not his entry was innocent and in good faith, to defeat altogether a recovery of damages resulting from his wrongful act. This is incompatible with the provisions of § 5575 (1933, § 33-104), and with the theory that one can not recover on the basis of his own wrong. There is no law authorizing a wrong-doer to charge the' true owner for any such expenditures. It was not until the act of 1897 (Ga. L. 1897, p. 79) that even an innocent holder could have an allowance of any kind as against mesne profits. It was declared by that law that a defendant “who has bona fide possession of such land under adverse claim of title may set off the value of all permanent improvements bona fide placed thereon by himself or other bona fide claimants under whom he claims55 (Code of 1910, § 5587; Code of 1933, § 33-107); but this does not confer a right of set-off to a defendant, whether or not he is such bona fide holder and has expended the money in good faith, for purposes other than “permanent improvements” placed on the land.
*415In Hecht v. Snook & Austin Furniture Co., 114 Ga. 921-923 (41 S. E. 74), it was said: “There is nothing in the statutes of this State which authorizes a defendant in a suit at law to set off, as a matter of legal defense to a suit on a contract, damages arising from a tort committed by the plaintiff; or1.to set off, in a suit for damages arising from the commission of a, tort by the defendant, a claim growing out of a contract between the plaintiff and the defendant.” The action being at law, the defendant’s legal rights are involved. If after the tortious act of eviction the wrong-doer has expended money for payment of taxes and making repairs on the property, and if the true owner has incurred a liability for payment of money so expended, such liability could only arise out of an implied contract to repay money which.had been expended for his use. So in the instant case the defendants could not, upon legal principles, set off the demand based -on contract against the plaintiff’s right to damages by way of mesne profits. As is apparent from what has been said, this is not an equitable action for an equitable accounting. There was not even a plea setting up a right to payment for money expended for “taxes” and “repairs,” or any plea to put the plaintiff on notice of the demand which he would be required to meet, so that he could prepare therefor. It was merely a bald attempt to introduce evidence of a demand which, if allowable at all, was essentially on the theory of set-off based on the implied contract. Whatever might be said in other jurisdictions, such evidence could not be given in this State, in view of the statutes and decisions of this court which have been cited. The decision in Graham v. Lanier, 179 Ga. 744 (4) (177 S. E. 574), not concurred in by all the Justices, in so far as relates to “taxes,” is opposed to the views herein expressed; but it is not a controlling precedent, nor did it give due weight to the statutes of this State. It seems to have treated the question- as if involved in an equitable accounting. The court did not err in rejecting the evidence mentioned at the beginning of this opinion.