concurring. The question whether in a suit for land and mesne profits the defendant or defendants might be entitled to set off against the claim for mesne profits amounts paid for taxes or repairs is not really involved in the present case, since the defendants failed to introduce or even to offer evidence as to the amounts expended for these purposes. But, as the question has *416been discussed in the foregoing special concurrence, the writer is inclined to make some reference to it, and to call attention to certain principles which are deemed to be applicable. In Harper v. Durden, 177 Ga. 216 (170 S. E. 45), it was said that a counterclaim for improvements is founded upon principles of equity, and could be asserted independently of statute. In Graham v. Lanier, 179 Ga. 744 (supra), it was said, Mr. Justice Atkinson dissenting, that a counter-claim for taxes would seem to rest upon the same footing. Several decisions from other jurisdictions were cited in support of this statement, and pertinent extracts from these decisions will now be quoted.
In Wallace v. Berdell, 101 N. Y. 13 (3 N. E. 769), it was said: “It would be manifestly unjust to confine the owner of the property withheld from him to the rents actually received by the party required to make restitution. The owner should have either those rents, or the rental value, as may be just under the circumstances. In either case payment necessarily made for taxes and ordinary repairs would be involved in ascertaining the rents received or the rental value. The mesne profits consist of the net rents after deducting all necessary repairs and taxes, Or the net rental value, or the value of the use and occupation. That is all of which the party from whom the possession has been withheld has been deprived. For this he should be made whole, and he should not suffer from any mismanagement, negligence, or improvident expenditure by the party in possession. On the other hand, he should not be relieved from any necessary diminution of the gross rents or rental value, or gross value of the use and occupation to which he would have been himself subjected had he not been disturbed in his possession. The amount justly chargeable for the rents which the owner derived, or might with reasonable diligence have derived, for the property, and the amount of the expenditures which have been properly made, and which the owner would have been obliged to make had he remained in possession, are matters to be determined by the referee.” In Ringhouse v. Keener, 63 Ill., 230, 237, it was held: “Appellant offered to prove as a set-off the amount of taxes paid by him on the land whilst occupied by him, but the evidence was excluded by the court. As the action is given to enable the owner of the soil to have a fair and just compensation for the use of the land, such rules should be adopted as are best calculated to attain *417that end. Here, appellant proposed to prove the payment of a large sum Avith Avhieli the land stood charged, and for which it Avould have been sold had it not been paid. It Avas money paid for the use of appellee, and for the preservation of the title she holds. Then, to prevent appellant from having the taxes deducted from the rents, would enable appellee to recover more than the rents and profits derived from the use of the land. If the jury should alloAv the usual rents, then the -question would be how much would the premises have rented for, the tenant paying the taxes, or hoAV much if they Avere paid by the owner of the soil. In this way the true rental value could be ascertained, and the value of the rent would thus be reduced the amount of taxes thus paid by the defendant. It is but just and proper, in any view of the question, that taxes thus paid should be deducted from the rents and profits.” In Muthersbaugh v. McCabe, 22 Pa. Super. 587, it was held that where persons have entered in good faith into possession of land, and have received the rents thereof, they are entitled, in an assessment of mesne profits in an action of ejectment, to have deducted, from the rents actually collected, taxes, insurance, improvements, necessary repairs and agent’s commissions. In McInerney v. Beck, 10 Wash. 515 (39 Pac. 130), it was said: “Where, in ejectment, judgment is rendered for plaintiff, and it is sIioavii that the improvements placed by defendant on the land are equal to its rental value while defendant was in possession, defendant is entitled to recover from plaintiff all taxes paid by him, and to have the amount thereof charged on the land. ■ . . It appears from this record that these respondents bought this land in good faith, went on it, made a bona fide residence, and in good faith made valuable improvements to the extent of several thousand dollars; that the property has been thereby benefited; that they have paid quite a large sum in taxes and for the improvement of streets. And Ave do not think it would be equitable to alloAV the appellant to stand back, and not assert her claim, Avhile all these improvements were being made for her benefit, and now demand possession of the land, with its value thus enhanced, without recompensing the respondents in this particular. And, in the absence of a statute, we should be inclined to allow the defendants the value of the improvements over and above the rental value during the time of the detention of the land, as a counterclaim, but section 534 of the Code of Procedure seems *418to indicate that the value of the improvements shall only be allowed as a set-off against damages for detention, and that such damages can only be recovered for withholding the property for the term of six years next preceding the commencement of the action. This restriction, however, does not 'apply to taxes or street-grade assessments.” In Holly v. Gibbons, 177 N. Y. 401 (69 N. E. 731), a purchaser from executors was required to restore to them the property in order that it might be sold to pay debts of the testator. The court said: “Such restoration should be accompanied by an accounting with respect to the rents and profits, after proper deductions for taxes and ordinary repairs.”
If, as stated in the concurring opinion, a claim for mesne profits is in the nature of an action for damages for a tort, it would seem that the defendant might prove payments for taxes and necessary repairs in reduction of the damages claimed by the plaintiff, and that even without pleading. The Code of 1933, § 110-405, provides : “In all cases where the damages are not liquidated and a judgment by default is entered, the plaintiff shall be required to introduce evidence and establish the amount of damages. The defendant may contest the amount of such damages before the jury, with a right to move for a new trial in respect to such damages and to except as in other cases.” In Equitable Building & Loan Asso. v. Holloway, 114 Ga. 780 (4) (40 S. E. 742), the plaintiff sued for land and mesne profits, and the case was in default. This court held: “The truth of an allegation made in such a petition as to the value of the premises for rent is not admitted by a failure to answer; and the demand for rent, being in the nature of a claim for unliquidated damages, must be proved.” The decision in Graham v. Lanier, supra, the writer submits, is based upon sound principle and is supported by authority; nor does it fail to give due weight to the statutes of this State. On the contrary, it is in accord therewith. But repairs might rest upon a different basis from taxes.