Lee v. Humphries

Cobb, P. J.

The charge of the court excepted to correctly set forth the law governing the recovery of mesne profits in an action where the defendant is a bona fide possessor under a claim of right. In estimating -mesne profits in such a case the basis must be the rental value of the land without the improvements placed thereon by the defendant. In the case of Dean v. Feely, 69 Ga. 822, 'this' court approved the following from Sedgwick & Wait on Trial of Title to Land: “The principle of law which prohibits the true owner from recovering as mesne profits the increase of income re-suiting from improvements made by the occupant is manifestly just and equitable. It can not be said that the additional profits are .taken from the owner’s land; on the contrary they spring from practically an independent source. While it is true that the improvements pass to the owner by a recovery in ejectment, yet they are the property of the occupant until set off against mesne profits, or, in some States, until after their value -is ascertained and the occupant’s lien upon the land therefor is satisfied.” See also Beverly v. Burke, 9 Ga. 440. The act of 1897 changed the law with regard to the recovery 'of mesne profits, to the extent that in the event the improvement exceeded the sum total of mesne profits found for the plaintiff, the excess might be set off against the value of the land itself; but what constitutes mesne profits, an'd the method of arriving at what should be allowed as mesne profits, were not affected by that act.

2. The first verdict of the jury rendered in this case did not cover the issues. The act of 1897 distinctly provides that the verdict sháll embrace a finding as to the value of the land. Acts 1897, p. 80. It was therefore the duty of the court to order the jury to retire and make their verdict conform to the law. Jordan v. Downs, 118 Ga. 546.

3. The foregoing disposes of all of the special assignments of error. There was no specific complaint against that portion of the verdict which reduced the mesne profits by the amount of taxes paid by the defendant, nor is there anything in the brief of counsel for plaintiffs in error on this subject; We express no opinion as to whether this was a proper reduction; but see, in this connection, Clewis v. Hartman, 71 Ga. 813, Austell v. Swann, 74 Ga. 281, and Tripp v. Fausett, 94 Ga. 330(3). The evidence, though conflicting, was sufficient to authorize the verdict, and we -see no reason for reversing the judgment.

Judgment affirmed.

All the Justices concur.