delivered the opinion of the court.
This bill was filed on the 29th of August, 1877,. to remove a cloud from the title of land, and to recover possession of the land. Executions against one John M. Davis were issued on . the 25th of April,. *6361874, and levied upon the land in controversy on the same day. At the sale made under these levies, on September 12, 1874, the complainants, or those under whom they claim, became the purchasers, and received the sheriff’s deed on the 30th of November, 1874. •On the 29th of January, 1875, they brought their action of ejectment at law against the defendant for the land, which suit was compromised and dismissed, the defendant taking from them a lease of the land for the year 1877, on the 10th of January of that year. Immediately after accepting this lease, the defendant caused to be proved and registered a deed from John M. Davis to himself for the land, bearing date the 18th of August, 1870, and set up a claim to the land. Thereupon this bill was filed.
On the first day of the term of the chancery court to which the writ of subpoena for the defendant was returned, the. defendant filed a plea in abatement in substance that at the time of' the service of the subpoena to answer, to-wit, on the 3d of September, 1877, this defendant was in attendance on the criminal court for the county of Knox, then open and holding its regular September term, as a regular juror, duly summoned to attend the court during the term. The plea was to the whole bill, and demanded the judgment of the court whether the suit ought not to be abated. The complainants set the plea for hearing on its sufficiency, and the chancellor overruled it as insufficient., The defendant then answered the bill, and filed his answer as a cross-bill. The cross-bill was •dismissed, on motion, for want of equity. Such pro*637ceedings were had in the original cause, that a final' hearing was had on its merits, and the chancellor rendered a -decree in favor of the complainants, removing the cloud upon their title by reason of the deed of Davis to Scruggs, and ordering that they be put in possession of the land. The chancellor also made a reference to the master to take an account of the rents of the land from the 30th of November, 1874, the date of the sheriff’s deed, and of the taxes paid by the defendant, and the permanent improvements jfiaced on the premises by the defendant not exceeding the rents. The master made a report of the-balance of' rent due, after deducting taxes, and then found, generally that the defendant “had covered the barn, built a crib, cut a ditch through the meadow, and put out a great many fruit trees,” and that these improvements were worth to the farm the amount of rents. The chancellor confirmed the report, overruling exceptions. The defendant alone appealed.
The principal ground relied upon by the appellant for a reversal is in the chancellor’s ruling on the plea in abatement. It is earnestly and ably argued that the plea is good under the provisions of the Code, see. 2902, sub-sec. 2, and sec. 4008. But, in the attitude in which the case comes before us, a preliminary question presents itself. The defendant, when his plea was overruled upon its sufficiency, instead of abiding by it, elected to appear and make defense on the merits. The general rule is conceded that an appearance waives a plea in abatement. Such an appearance at any time before the' plea is disposed of, *638as by filing a plea in bar, would waive the dilatory defense: Douglass v. Belcher, 7 Yer., 105. Does the fact that the plea in abatement has been overruled, -change the effect of appearance and defense? No reason occurs why it should. Why may the defendant not waive the plea after it has been decided to be insufficient, as he may do. after issue is taken upon it? In either case, he chooses to try on the merits. And he can no more, in the one case than in the other, expect the court, after he has voluntarily submitted to its jurisdiction and had all that he was justly entitled to, a full trial, to take any further notice of a mere plea for delay. He cannot have both a trial and delay. The law does not favor the plea to that extent. If he wishes to have the judgment of this court upon the sufficiency of his plea, he must abide by it, and decline to plead over. That has been held to be the proper mode of accomplishing the object: Boon v. Rahl, 1 Heis., 15. Any other ruling would .give the defendant the benefit, in the contingency which has happened in this case, of both the plea in abatement and a plea in bar, which he is not entitled to. He could not have had both if the plea had been held sufficient. For, if the plea be found untrue, the ■complainant takes his decree on the merits. By the Code, sec. 4393, it is provided that if a plea in chancery be found false, the complainant shall have the same advantages as if it had been so found by a verdict at common law. And after a verdict at common law upon the truth of a plea in abatement, where the issue is to the country, there is no respondeat *639ouster: Straus v. Weil, 5 Cold., 126; Bacon v. Parker, 2 Tenn., 55. The opinion to the contrary in Kendrick v. Davis, 3 Cold., 524, was inadvertently delivered by overlooking the distinction between overruling a plea on its sufficiency, and finding the falsity of the plea on the trial of the issue joined upon it: Hicks’ Man., sec. 78 b; Searight v. Payne, 1 Tenn. Ch., 190; Robb v. Parker, 4 Heis., 58, 70.
There are cases in our reports in which this court has given the defendant the benefit of a plea in abatement, erroneously overruled, after a trial on the merits. In two of these eases, the plea was to the jurisdiction of the court, not a plea of a mere personal privilege: Chambers v, Haley, Peck, 159; Klepper v. Powell, 6 Heis., 503. The first of these cases was an attachment of property at law issued by a justice in a wrong county, and the decision was rested on a case never reported, without giving any reason. The second of these cases was an attachment of property, but in the court of chancery. The decision was principally rested on a provision of the Code, sec. 4395, which seems to have been intended to prevent a resort to two dilatory defenses, rather than to confer a privilege. The case of Martin v. Ramsey, 7 Hum., 260, is, however, strictly analogous to the case before us. The suit was in chancery, and the plea that a subpoena to answer was served upon the defendant when attending court as a witness. The report is probably defective. For, as the facts now appear, this court is made to dismiss the bill upon holding the plea good when set for hearing on its sufficiency, which, of course, could *6400 never have been done. It is more likely that issue ■was taken on the plea below, and the error of, the court below was in finding that it was not sustained by the proof. But even in this view, the effect of the finding would have been final under the act of' 1801, ch. 6, sec. 26, brought into the Code sec. 4393. The decision is not satisfactory in any aspect.
The correctness of the chancellor’s decree upon. the merits is not seriously impugned, and is unquestionably correct so far as it gives the complainants relief. The title of the complainants was superior to that of the defendant under his unregistered deed, as the defendant conceded by accepting a lease under it.
There was error, however, in the decrees below in ordering a general account in favor of the defendant for improvements, and in allowing for improvements after the defendant had notice of the superior title of' complainants, and especially after the agreement of lease. Most of the improvements were made after the defendant had become a lessee, and all of them perhaps after he had notice of the complainants’ title. The lease was in writing, and contained no stipulation that the lessee might make improvements at the expense of the lessors. Unless there is a special agreement to this effect between the parties, the tenant cannot claim compensation from his .landlord for improvements or repairs: Taylor L. & T., sec. 553; Kutter v. Smith, 2 Wall., 491; 6 Cow., 475. The Code, secs. 3259, 3261, allows a bona fide occupant of land, under color of adverse title, compensation for permanent improvements to the extent that they enhance the value of the land *641not exceeding the rents and profits. But the construction put by the courts upon the statutes, brought into the Code in these sections, is that, in the absence of any independent equity controlling the legal rights, they only allow for improvements made before the party had knowledge of the better title, for the obvious reason that after notice the party ceases to be a bona fide occupant: McKinly v. Holliday, 10 Yer., 477. And this is the rule of equity, where the owner of the land is seeking active relief: 2 Sto. Eq. Jur., 799 a; Putnam v. Ritchie, 6 Paige, 390, 405; Green v. Biddle, 8 Wheat., 1. The defendant, in his deposition, shows that he knew of the sale under which.complainants claim when it was made, and the summons in the action of ejectment was served upon the defendant on the 22d of January, 1875. The improvements were probably all made after the latter-date, and subsequent to the execution sale.
The complainants have not appealed, but the general appeal of the defendant brings up for review the decree adjudging the rights of the parties, and settling the priciples on which the reference was made as to the improvements: Carnes v. Polk, 5 Heis., 245.
The decree will be affirmed on the merits, and reversed as to the matters of account, and a new reference made upon the principles of this opinion. The complainants may take a decree for the immediate possession -of the land. The defendant will pay all costs.