Gilchrist, J.
The tenant derived all the claim that he had to the demanded premises from the deed which Wentworth gave him ; and he had mortgaged the land to Wentworth, who, it appears, had given the tenant a lease. The fact which it became necessary to show was, that the tenant no longer claimed possession in his own right as of fee, and that his possession was that of Wentworth.
Nor any thing that the conveyances disclosed it might have been otherwise, since the deed which the tenant had given to Wentworth was a defeasible one.
The admission of the tenant that he was a mere tenant at will to Wentworth, appeal’s to have been as available in the hands of Wentworth as any other writing that could have been executed, showing that relation, or establishing it. Wentworth, therefore, was competent to release Pinkham from his covenants, so as to enable him to testify.
The statute entitles to compensation for betterments, to be assessed by the jury, any party who shall, six years before the commencement of the suit, have been in the peaceable possession and improvement of the land, under a bona fide purchase, or who, having been in possession under such circumstances for a less time, derives his title from one whose term of possession, under a like purchase, shall, with that of the occupant, amount to six years.
The statute renders it immaterial to inquire whether the buildings and improvements are made before or after the commencement of the term of six years; but it is essential that there should have been, during all that term, an actual possession and improvement, or use, whether the land be made betterthereby or not.
The first act of possession was by Pinkham, claiming under the State, who, by the agency of Emery, in 1834, made an entry, which proved unavailing for the purposes for which it was made, by reason of the inefficiency of the agent employed. How long Emery actually prosecuted his work does not appear, but in the autumn of 1835 work was going on; and it also appeared that during the summer of that year a witness, who was upon the land, perceived that a part of the land where Emery had felled the year before, had been cleared since.
We think that these facts might well have been submitted to the jury, as evidence of the possession and improvement required by the statute; which does not appear to be an improvement in that sense in which the word is used in the sequel of the statute authorizing improvements to be valued in connection with the buildings, under the provision entitling the occupant to a remuneration for what he has expended.
The verdict must, for the error of the court in this particular, be set aside and a
New trial granted.