HOLLINGER v. SMITH, 4 Ala. 367

GOLDTHWAITE, J. This case was argued chiefly upon its supposed connection with the treaty made with the Creek Indians, in 1814, and the act of, Congress of the 3d March, 1817, by which the United States complied with their engagements to the Indians, as stipulated in the first

article of the treaty. The treaty contemplates no other reservations of land than, to the Chiefs and Warriors of the tribe, and then only upon the condition that they and their descendants shall continue to occupy the reservations. The act goes much beyond the treaty, and after providing for the reservations of land by the Chiefs and Warriors, permits these lands to descend to the heirs in fee simple whenever the ancestor continues in the occupation until the term of his death.

It also provides for three other distinct classes of reservations to the children or descendants of those who were killed in the service of the United States, or who have died since the treaty, or who are the heads of families, but not Chiefs or Warriors. In one or more of these classes the title provided for is a fee simple.

The mere inspection of the certificate which the defendant gave, in evidence does not enable us to determine to which class the reservation belongs under the act of Congress, and all the charges requested with reference to the title itself must be considered as abstraci, because no evidence is disclosed as having been before the jury from which any conclusion can be drawn of the incorrectness of the instructions. In this condition of the case we have no means to ascertain what was the title of either party, and consequently no revision can now be had of the charges so far as they seem to affect the title. 2.

But the affirmative charge with respect to the improvements made by the defendant, and his right to have them considered in the ascertainment of the damages to be recovered against him, enables us to review this point in the case, although the evidence is not set out with that precision which is always desirable.

It is evident from what is stated in the bill of exceptions, that the def'iulant was not a mere trespasser, but that he held under Randon, by some claim of title derived from him; and in the third request for a particular charge it is said permanent improvements were proved to have been made. by the defendant, he holding under color of title. The Circuit Court excluded all consideration of these improvements from, the jury, and instructed them that the plaintiff was entitled to recover the value of the rents proved, inasmuch as the defendant had made no suggestion of such improvements before the trial.

This charge assumes to be predicated on the act of 1836, [Digest, 652,] which provides, that in any suit thereafter to be commenced, for the possession of lands or tenements, it shall be lawful for the defendant, at any time before the trial of such suit, to suggest to the Court, that he and those persons whose estate he has in the lands or tenements sued for, have had adverse possession of the same for three years next before the commencement of such suit, and that he and those persons whose estate he has, have made permanent and valuable improvements on the lands sued for, during the time he and they have had adverse possession of the same.

The act then proceeds to declare that the value of these improvements shall be set off against the value of the use and occupation, and if they are greater, no writ of possession shall issue for one year, unless the excess shall be paid into Court for the defendant. This enactment provides a cumulative remedy, and does not take away any rights which defendants had by the common law to set off the value of improvements, in mitigation of the damages in an action of trespass for mesne profits.

That action has always been considered as governed by equitable rules, and when the owner of land has been benefitted by permanent improvements, adding to its value, there is no reason why he should also be compensated in damages, especially when the action is against one who is in under color of title, and is not a mere trespasser. The law was so held in the case of Jackson v. Loomis, [4 Cowen, 168,] and it seems to be applicable to the case now under consideration, as it is clear that this defendant was not a mere trespasser.

The Circuit Court certainly erred in considering the statute as taking away the right of the defendant to give evidence of permanent improvements of the land in mitigation of damages, and in ruling that the jury could not consider such improvements in ascertaining the sum to be awarded to the plaintiff as damages, and for this the judgment must be reversed.

The defendant in error has offered to remit his damages for the purpose of avoiding another trial, but we think this cannot-be done, as our jurisdiction over the case ceases with its reversal, and we are not invested with the discretionary power to allow of such amendment. When the judgment is reversed there is nothing for such a release to operate upon, because the. judgment is declared nidi.

The release cannot be entered before the reversal, for the reason that no such power is vested ■ in this Court, and by such a course the parties in a great number of cases would avoid the consequences of erroneous proceedings, to the prejudice of those against whom they were committed. Judgment reversed and remanded.