The act of the state of Kentucky, of the 27th of February, 1797, concerning occupying claimants of land, whilst it was in force, was repugnant to the constitution of the United States, but it was repealed by a subsequent act of the 31st of January. 1812, to amend the said act; and the last-mentioned act is also repugnant to the constitution of the United States, as being in violation of the compact between the states of Virginia and Kentucky, contained in the act of the legislature of Virginia, of the 18th of December, 1789, and incorporated into the constitution of Kentucky.

By the common law, the statute law of Virginia, the principles of equity, and the civil law, the claimant of lands who succeeds in his suit is entitled to an account of mesne profits, received by the occupant from some period prior to the judgment of eviction, or decree.

At common law, whoever takes and holds possession of land to which another has a better title, whether he be a bona fidei or a mala fidei possessor, is liable to the true owner for all the rents and profits which he has received; but the disseisor, if he be a bona fidei occupant, may recoup the value of the meliorations made by him against the claim of damages.

2*1 *Equity allows an account of rents and profits in all cases, from the time of the title accrued (provided it does not exceed six years), unless under special circumstances, as where the defendant had no notice of the plaintiff's title, nor had the deeds in which the plaintiff's title appeared in his custody, or where there has been laches in the plaintiff in not asserting his title, or where his title appeared by deeds in a stranger's custody; in all which, and other similar cases, the account is confined to the time of filing the bill.

By the civil law, the exemption of the occupant from an account for rents and profits is strictly confined to the case of a bona fidei possessor, who not only supposes himself to be the true owner of the land, but who is ignorant that his title is contested

NOTE.-Mesne Profits.-The plaintiff can recover mesne profits, in the nature of damages, only from the time of the ouster laid in the complaint in ejectment. Hylton v. Brown, 2 Wash. C. C. 165.

May be recovered of the landlord who is in possession by his tenant, and who aids in withholding possession, or actually defends, though he does not appear on the record as defendant. Chirac v. Reinicker, 11 Wheat. 280; Hunter v. Britts, 3 Camp. N. P. R. 455.

Defendant may set-off the value of his improvements. But they should be first deducted from the profits received before the date of the demise alleged. Hylton v. Brown, 2 Wash. C. C. 165.

Where, after a recovery at law from a bona fide possessor for a valuable consideration without notiee, plaintiff seeks to recover the rents and profits. the defendant will be allowed to deduct therefrom for beneficial improvements made by him on the estate and recoup them from the rents and profits.

by some other person claiming a better right. And such a possessor is entitled only to the fruits or profits which were produced by his own industry, and not even to those, unless they were consumed. Distinctions between these rules of the civil and common law, and of the court of chancery, and the provisions of the acts of Kentucky, concerning occupying claimants of land.

The invalidity of a state law, as impairing the obligation of contracts, does not depend upon the extent of the change which the law effects in the contract.

Any deviation from its terms, by postponing or accelerating the period of its performance, imposing conditions not expressed in the contract, or dispensing with the performance of those which are expressed, however minute or apparently immaterial in their effect upon the contract, impairs its obligation.

The compact of 1789, between Virginia and Kentucky, was valid under that provision of the constitution which declares that no state shall, without the consent of Congress, enter into any agreement or compact with another state, or with a foreign power"-no particular mode, in which that consent must be given, having been prescribed by the constitution; and Congress having consented to the admission of Kentucky into the Union, as a sovereign state, upon the conditions mentioned in the compact.

The compact is not invalid upon the ground of its surrendering rights of sovereignty, which are unalienable.

This court has authority to declare a state law unconstitutional, upon the ground of its impairing the obligation of a compact between different states of the Union.

The prohibition of the constitution embraces all contracts, executed or executory, between private individuals, or a state and individuals, or corporations, or between the states themselves.

Touit court of Kentucky, by the de- [*3 mandants, Green and others, who were the heirs of John Green, deceased, against the tenant

HIS was a writ of right, brought in the Cir

Krause v. Means, 12 Kansas, 335; 1 Sawy. 15; Bright v. Boyd, 1 Story, C. C. 478; Coulter's case, 5 Coke, 30; Jackson v. Loomis, 4 Cow. 108; Millingham v. Long, 47 Ga. 540.

The confession of entry by the defendant in ejectment is sufficient to enable plaintiff to recover; aliter, when the judgment in ejectment was recovered by default. Then there must be proof that defendant has had possession. Lessee of Brown v. Galloway, 1 Pet. C. C. 291; Stewart v. Railroad Co., 33 N. J. L. 115.

In ejectment plaintiff may recover mesne profits, if he has previously notified defendant of his intention to proceed for them, and thus prevented any surprise. Lessee of Batten v. Bigelow, 1 Pet. C. C. 452. In the statutory action of ejectment in Pennsylvania, mesne profits may be recovered. Dawson v. McGill, 4 Wheat. 230.

The legal right of action for mesne profits, which accrued during the pendency of the action, is lost

Richard Biddle, to recover certain lands in the state of Kentucky, in his possession. The cause was brought before this court upon a division of opinion of the judges of the court below, on the following questions:

1. Whether the acts of the legislature of the state of Kentucky, of the 27th of February, 1797, and of the 31st of January, 1812, concern ing occupying claimants of land, are constitutional or not; the demandants and the tenant both claiming title to the land in controversy under patents from the state of Virginia, prior to the erection of the District of Kentucky into

a state.

2. Whether the question of improvements ought to be settled under the above act of 1797, the suit having been brought before the passage of the act of 1812, although judgment for the demandant was not rendered until after the passage of the last-mentioned act.

46

The ground upon which the unconstitution ality of the above acts was asserted, was, that they impaired the obligation of the compact between the states of Virginia and Kentucky, contained in an act of the legislature of the former state, passed the 18th of December, 1789, which declares that all private rights and interests of lands within the said district" (of Kentucky) "derived from the laws of Virginia prior to such separation, shall remain valid and secure under the laws of the proposed state, and shall be determined by the laws now existing in this state." This compact was 4* *ratified by the convention which framed the constitution of Kentucky, and incorporated into that constitution as one of its fundamental articles.

The most material provisions in the act of 1797, which were supposed to impair the obligation of the compact of 1789, and therefore void, are the following:

1. It provides that the occupant of land, from which he is evicted by better title, shall, in all cases, be excused from the payment of rents and profits accrued prior to actual notice of the adverse title, provided his possession in its inception was peaceable, and he shows a plain and connected title, in law or equity, deduced from some record.

ing improvements made on the land prior to actual notice of the adverse title, after deducting from the amount the damages which the land has sustained by waste or deterioration of the soil by cultivation.

3. As to improvements made, and rents and profits accrued, after notice of the adverse title, the amount of the one shall be deducted from that of the other, and the balance added to, or subtracted from, the estimated value of the improvements made before such notice, as the nat ure of the case may require. But it is provided, by a subsequent clause, that in no case shall the successful claimant be obliged to pay for improvements made after notice, more than what is equal to the rents and profits.

4. If the improvements exceed the value of the *land in its unimproved state, the [*5 claimant shall be allowed the privilege of conveying the land to the occupant, and receiving in return the assessed value of it without the improvements, and thus to protect himself against a judgment and execution for the value of the improvements. If he declines doing this, he shall recover possession of his land, but shall then pay the estimated value of the improvements, and also lose the rents and profits accrued before notice of the claim. But to entitle him to claim the value of the land as above mentioned, he must give bond and security to warrant the title.

The act of 1812 contains the following provisions:

1. That the peaceable occupant of land, who supposes it to belong to him in virtue of some legal or equitable title founded on a record. shall be paid by the successful claimant for his improvements.

2. That the claimant may avoid the payment of the value of such improvements, at his election, by relinquishing the land to the occupant, and be paid its estimated value in its unim proved state.

by the defendant's death after the recovery in ejectment had, and the action will not lie against his personal representatives. Although such legal right of action for the mesne profits, which accrued during the pendency of an action of ejectment, survives, where plaintiff dies after recovery had in the action, and the action for them is properly brought in the name of his heir at common law. Means v. Pres. Church, 3 Penn. 93; Harper v. Whittaker, 5 Watts, 474; Bard v. Nevin, 9 Watts, 328.

Defendant who quits the premises during suit is not liable for mesne profits afterwards accrued. Mitchell v. Findley, 10 Penn. 198.

After judgment in ejectment plaintiff can only recover for what accrued within six years before the commencement of the action; for those accruing previously the statute of limitations is a bar. Hill v. Meyers, 46 Penn. 15.

The common law action for mesne profits may be brought in Maryland; and although the action cannot be brought before a recovery in ejectment, it may be brought pending a writ of error, but execution therefor will be stayed until the writ of error is determined. Mitchell v. Mitchell, 1 Md. 59; see Mitchell v. Mitchell, 10 Md. 234.

In Kentucky, by the Civil Code, sec. 111, the plaintiff may unite claims for the recovery of real property, "and the rents, profits, and damages for withholding the same;" and if a claim for rents issues, and profits be set up in the action for the recovery of the land, it is à bar to a separate suit for the rents. Walker v. Mitchell, 18 B. Mon. 541.

In North Carolina the record of recovery in ejectment is conclusive evidence of title at the date of the demise in an action for the mesne profits, but not evidence that defendant's possession commenc ed before the action of ejectment was commenced, but is conclusive of his possession at commencement of the ejectment, and prima facie evidence that his possession continued till the judgment and execution. Poston v. Jones, 2 Dev. & Batt. L. R. 294. See Doe v. Roe, 30 Ga. 553.

A judgment in ejectment is conclusive against the defendant, his landlord or tenant, claiming under him, for all profits since the date of the demise stated in the declaration in ejectment; and the right to mesne profits is a necessary consequence of a recovery in ejectment. Doe v. Whitcomb, 8 Bing, 46; City of Apalachicola v. Ap. L. Co., 9 Fla. 340; Doe v. Harlow, 12 Ad. & Ell. 42; Shipley v. Alexander, 3 Har. & J. 84; 1 Barb. 158; 11 Ired. 301;