It is well settled that in a real action judgmerib must be rendered upon the title as it was at the date of the writ. The tenant cannot set up a title acquired by a deed m»dc ív mm without the demandant’s concurrence since the commencement of the suit. Andrews v. Hooper, 13 Mass. 472. Hall v. Bell, 6 Met. 431. Tainter v. Hemenway, 7 Cush. 573. Curtis v. Francis, 9 Cush. 427. The title acquired by these tenants by taking the land during the pendency of the action, by virtue of the Gen. Sts. c. 38, § 38, was without the demandant’s concurrence, and was transferred by the exercise of a power granted by the statute, and thus was equivalent to a statute conveyance.
The tenants had attempted to take the land before the action was commenced. But, in order to gain a title in this way, it was necessary to give notice to the owner as provided in the statute, and to tender to him the appraised value of the land. They had not done either of these acts. But as the acts were to be done for the benefit of the owner, it was in his power to waive them. They offered evidence tending to show that he had waived both the notice and the tender. But he denied this; and thus two questions of fact are presented, which should be determined by a jury. But neither of them was submitted to the jury. It is necessary that the verdict be, set aside and a new trial granted, in order that these facts be determined. Until then, no question can arise as to betterments, or as to what judgment shall be rendered.
The demandant may take advantage in this action of any irregularity in the first taking of the land, because he has no remedy .by certiorari to quash the proceedings. Robbins v. Lexington, 8 Cush. 292.
Verdict set aside ; case to stand for trial.