The opinion of the Court was delivered by
Huston, J.—The defendant is admitted to be an innocent purchaser for a valuable consideration. Where a judgment is in full force as appears by the docket, and the plaintiff is proceeding to collect the amount, if the defendant alleges the debt, or part of it is paid, he should apply to have the execution stayed, and to be let in to have his payments allowed ; if he does not do this, a court would' hardly let in a defendant who stood by and saw his land sold, to prove, at the end of twenty years, that the debt had been paid before the sale. But suppose he could have proved that this was all a contrivance between him and Mead to have the land sold and the money applied to Mead’s judgment, and had gone further, and proved that it was to be bought in for the use of Ray, but the purchaser had sold it to an innocent purchaser for a fair price, that purchaser would hold the land from Ray and his heirs. Lazarus «. Bryson, 3 Bim. 54, is in point. This testimony, in a cause between third parties, went to set aside a judgment never attempted to be directly impeached. The court in 1816 decreed the amount levied on Ray’s execution to be paid to Mead’s judgment. This testimony went to reverse that decree, and both these to affect a third person, an innocent purchaser under regular legal proceedings.
The only other point contested in the cause arose from the fact that M’Calmont had cleared thirty acres, which the plaintiff called *463committing waste, by cutting down and burning and destroying timber; and from his having erected a saw-mill, and from the same dam carried the water to a grist-mill, built just over the line on his other land: and the plaintiff contended that the rents, before and after these improvements, must be applied to discharge the mortgage.
In England, and in some of these states, perhaps, it seems to be usual that the mortgagee enters into possession ; and the books are full of cases as to what allowances for expenses, repairs and lasting improvements shall be made to such mortgagee in possession. These cases do ncpexactly agree : in some, the cost of beneficial and lasting improvements has been added to the debt, to be paid before the mortgagor, can redeem ; but in the .better opinions, it would seem, the allowance has been confined to repairs, though rebuilding a kitchen, become so ruinous as to be useless, was allowed, as within the term repairs, though building one where there had been none before, would not have been allowed. See 3 Poioell on Mortgages 956, and the following pages and cases cited. In several of the states of the United States the'allowance seems to be confined to repairs, and not to extend to improvements. Everywhere the mortgagee in possession is chargeable for waste, and in England, particularly, for timber cut. There every part of every tree will bring cash. In a country covered with timber, which cannot be sold, and must be removed before any person can make any use of the land, it would seem the law, as to timber, must be otherwise. In many parts of Pennsylvania you can purchase land for 2 dollars per acre, or less, and it will cost from 4 to 10 dollars per acre to clear it so as to be fit for cultivation. Thus in Cable v. Moore, 1 Johns. Chan. 387, we find a mortgagee claiming to be allowed to add the cost of clearing land to his debt., under the name of improvement. In the case before us it is asked to charge it against the mortgagee in possession, as waste. In this state no rule which will apply to every tract can be laid down. In some parts of the state it would be difficult to find a farm in which a mortgagee in possession could cut more timber than was necessary to be used on the farm, without committing waste; but in places where many farms have less than ten acres in the hundred cleared, in fact, have not enough in cultivation to support the family and stock, it is not waste to clear land, though in doing so the timber is collected in heaps and burnt. The situation and circumstances of each case must then be taken into view. If a prudent owner would clear off the timber; if doing so increases the value of the tract; if there is so much covered with wood that more ought to be cleared each year for many years, it cannot be waste.
In South Carolina they seem to have adopted the English practice, “ all just allowances are to be made to the defendant for necessary expenses and repairs, and management and improvement, after which the proceeds are to be applied, in the first place, to the interest due,” &c., &c. 2 M’Cord’s Chan. 465.
In Massachusetts we find it said to have been decided, that a *464mortgagee in possession shall not be allowed for improvements ; 2 Pickering 505; but it was a dictum in an action for mesne profits.
In 5 Pickering 250, 270, we find a case on a mortgage. The mortgagee had leased the farm, and, without any fault of his, lost the rent of one year: he was not charged with the rent of that year, but he was charged for the rent of the other years. He claimed an allowance for an aqueduct to bring water to the farm: this was disallowed at first, but on proving that it was necessary, the decree was changed, and it was allowed.
In 1 Johns. Chan. 387, before cited, the chancellor refused to allow for improvement in clearing land, and decreed the mortgagee “ to be charged with the rents and profits received, except such as arose exclusively from his own improvements; to be allowed for necessary expenses in repairing, if any, but not for improvements in clearing land.” I should agree to this, with the addition, that if the mortgagee had cultivated the land after it was cleared, for so long a time as fully to reimburse his money expended, he ought from thenceforward to be charged with the rent for what he had cleared. So here, if M’Calmont has used the land that he cleared and the mill he built, so long as to pay him, or shall have, when the account is taken, used them longer than sufficient to pay him for his expenses in building the dam and mill, he shall be charged for the rent even of his own improvements, from the time when he was paid the expense of those improments. He must be charged with the rent of the farm in the state it was when he entered, from the time he entered. If the jury find that the clearing land was an injury to the farm, he must be charged for the waste; if not an injury, he is not to be charged for waste.
In the middle and western counties of this state, mortgagees have seldom entered into possession, and such cases have not come into consideration much. We have adopted what seemed the most just of the decisions of other states. The cases arising on this subject are very various in their circumstances, and we do not pretend that this or any other rule can be of proper application to all possible cases.
The other matters discussed in the court below, have not been alleged as errors, and were not errors. As the plaintiff cannot recover without having tendered the amount due on the mortgage, it may be most prudent to ascertain the amount in the scire facias brought on the mortgage; and unless in that suit the debt is found to have been paid, the plaintiff cannot recover in this action. As the judge did not give the rule as to the charging rents, as here laid down, the judgment on this account is reversed.
Judgment reversed, and a venire de novo awarded.