It appears that the Cheshire Railroad has erected betterments upon the premises called the Y to a very large amount, stated at $70,000. That corporation took lease of those premises from Elliot, acting as the trustee of the bondholders, for ninety-nine years, in good faith, all parties understanding that the mortgage had been foreclosed. The plaintiffs ask to redeem their property, including this tract of land, from the mortgage. It would be grossly unjust to allow the premises to be surrendered to the plaintiffs with all these improvements, without payment therefor. As they come here asking that equity may be done them, they must, according to the familiar rule, do what is equitable in return. In shaping the decree, therefore, in this case, it should be done so as to work out an equitable result. If the plaintiffs had brought a suit at law to recover the Y, the Cheshire Railroad could, under ch. 213, sec. 8, Gen. Stats., claim the benefit of the improvements, and the judgment would be made up accordingly. This proceeding is in effect an action, among other things, to recover the possession of this piece of land. In order to prevent great injustice, the value of the land and of the improvements should be ascertained, and the decree should then be shaped substantially in accordance with ch. 213, sec. 8, Gen. Stats. The value of the betterments must be ascertained by a hearing before the circuit court, or by a further hearing before the master.
Unless the plaintiffs give security to the satisfaction of the circuit court, a receiver should be appointed to receive the amounts that may be found due from the defendants, and distribute the same among the bondholders.
As to the other questions raised in this case, it is only necessary for me to say that I concur in the views so fully considered and expressed by my brothers LADD and FOSTER.