— -The statute provides, that upon a sufficient showing, the district court may set aside the report of referees, in whole or in part, and refer the matter anew, or any part thereof, either to the same, or other referees. Code, section 1796.
The only showing attempted to be made in this case, is *469by the affidavit of the defendant; and this, in our opinion, is wholly insufficient for the purpose of invalidating the report of the referees. It is not sufficient that the defendant states on his oath, that, the improvements are worth twice the amount fixed as their value by the referees. This is the mere opinion of the defendant, upon a matter about which the plaintiff and himself differed; which difference the referees were to adjust by their decision. Nor is it sufficient that the defendant has sworn that he believes that the referees have omitted to consider a portion of the improvements in their estimate. If this is not mere conjecture on the part of the defendant, it must have been in his power to establish the fact, to the satisfaction of the court, by some evidence competent for the purpose. The affidavit of his belief by defendant, is not a sufficient basis for the action of the court. The referees state that they heard the evidence of both parties, and were fully advised concerning all the matters submitted to their decision. If there was any mistake, it must be shown by the defendant. It requires something more than merely his opinion or conjecture, to overthrow the finding of the referees. Their report is entitled to at least the same consideration as the verdict of a jury. Code, section 2111.
¥e think the plaintiff was properly allowed payment for the use and occupation of his land, from the time that his title accrued, to the time the defendant was, by agreement, to surrender the possession. The fact that the amount allowed for rents was deducted from the value of the improvements, is no valid objection to the judgment of the court. The submission executed by the parties, stipulates that the referees are to ascertain the value of the annual rents, and that the defendant is to be paid for his improvements, after deducting the amount of the rents as fixed by the report of the referees. As this was the agreement of the parties, there was no error in the judgment of the court which carried the same into effect.
At common law, the damages in ejectment were merely .nominal. Adams on Ejectment, 289. If the plaintiff *470choose, however, to proceed for mesne profits, he may do so, giving notice of his intention. Battin v. Bigelow, 1 Peters, C. C., 452; Brown v. Galloway, 1 Ib., 291; Rugan v. Phillips, 4 Yeates, 382. The plaintiff, in his petition and notice, claims of defendant, as well the title and possession of the land sued for, as the sum of six hundred dollars, as his damages for the use and occupation of the premises, for a period not exceeding six years prior to the commencement of the action. Code, section 2008. We have no doubt but that the plaintiff, holding the legal title and right of possession to real estate, may as rightfully in this action, recover for the use and occupation as he may for the title and possession.
The remaining objection of the defendant is, that the district court rendered judgment for the plaintiff, without making payment for the improvements, a condition precedent to the issuing of execution. The plaintiff was entitled to judgment for the title and possession of the land. This judgment, the defendant could not resist, as he had nothing to oppose to the plaintiff’s legal title. He now only claims the right to continue in possession, until his improvements are paid for. It must be borne in mind, that the judgment of court only settles the rights of the parties, according to their agreement, and the report of the referees. By this agreement, the defendant was to remain in possession of the land until March 1st, 1857, at which time the plaintiff was to pay him for his improvements, deducting the rents, and he was to surrender possession of the premises to plaintiff in good condition.
Under the occupying claimant law, (Code, section 1233), the defendant is entitled to remain in possession after judgment against him, until paid for improvements, on filing a petition to have their value ascertained, and to obtain payment for the same, before surrendering possession. This petition, we think, the defendant can at any time file, if he is apprehensive that he will be turned out of possession before the requisite payment is made. We think, however. he should not be driven to another action to effect this. *471The judgment of the district court will beso far amended, as to direct that no execution will issue on the judgment, to put the plaintiff in possession of the land, until the amount awarded to the defendant for the value of his improvements, (deducting the rents), shall be first paid or tendered to him. In other respects, the judgment will be affirmed.
Judgment affirmed.