sation. And still, as the defendants' cases shew, the purchaser, on eviction, might recover on his warranty the full value at least of the land and improvements, as they were when conveyed to him; so that, in the event, the original wrong doer would have the benefit of the improvements, or else the purchaser would have a double satisfac tion. But put the case, as the defendants' counsel, without any ground, supposes it, that the improvements must have been made by the bona fide purchaser, still he had no right to compensation before the statute. Such right, at any rate, could be considered as no better than the imperfect one, that a man may have to the charity or generosity of others. It stands on hardly so good a foundation as a mere debt of gratitude. Can the Legislature enforce the discharge of such previous obligations? It is believed they cannot. Rights of property, as enforced in courts, must not depend on any vague and imaginary notions of natural justice, but on the settled rules of law. These are the great landmarks, which limit the rights of parties, and they must be observed. They settle the questions, what is right? and, What is just? And on this subject, the rule in law and in equity is the same," Equitas sequitur legem." It is said, that the statute is founded on a supposition, that the tenant has a vested right to the improvements he has made, and that the object of the law was, to provide a remedy where, it is conceded, none existed before. But it is a maxim of law, that for every right there is a remedy. Want of right and want of remedy are convertible terms. If any such right existed, there seems to be no difficulty in adapting the existing forms of common law remedies to it. The case in 5 John. 272, did not turn on any question as to the form of remedy. Society, &c. vs. Wheeler. The cases of warranty, &c. have no bearing in favour of the defendants. They respect only the construction and effect of contracts as between the parties and privies. The cases cited of buildings, which may be severed and taken away by the lessee during the term, are also inapplicable, and they do not warrant the doctrine inferred from them, "that whatever is annexed to the freehold does not become the property of the owner of the land." The principle of these cases I apprehend to be, that the things never were annexed to the freehold, or if they had been so annexed, yet they were severed from the freehold or inheritance by the contract of the parties, express or implied, and common usage may be evidence of such contract. The cases of lessees, however, might not be quite so inapplicable, if it could be shewn, that they had a right to compel their landlords to pay for the coppers, buildings, and ameliorations of the soil, by them put up and made on the land, when not stipulated for in the lease. Every principle of the common law is repugnant to the notion of any such right of the defendants to compensation for their improvements, antecedent to the statute. The improvements themselves, in most cases arising under the statute, are such as would be considered waste by the common law, and if made by the tenant of a rightful particular estate, would subject him to forfeit it.30 This notion is repugnant to the law in relation to personal property, in the cases of accession and confusion of goods, as laid down, 2 Black. Com. 404, &c. And Bracton in the place there cited, as well as Co. Litt., applies the rule of accession more strongly to real estate. It is impossible to conceive what is meant by a "vested right to land," and "a vested right to a remedy to recover the land with all the improvements," and a vested right, at 30 Co. Litt. 67. Society, &c. vs. Wheeler. the same time, in the improvements in an adverse possessor. Permit me to have the effect of my vested rights to the land, and to the remedy to recover the land, as it is, with the improvements, and also to keep my money in my own possession, to which I suppose I have also a vested right, and my adversary may enjoy such vested right in the improvements as he can. 2. The 14th article of the bill of rights secures a remedy for every right of property, as absolutely as the right itself is secured. It is immaterial to the party pursuing his rights, whether he is obliged to pay the purchase money to the government, or to the adverse party. 3. If it be true that, in law, the defendants had no vested right to compensation for improvements before the act passed, then it seems to be conceded, that the constitutional objections, both on the articles protecting the rights of property, and on the article prohibiting retrospective laws, are well grounded. But it is doubtful, at least, whether the defendants' definition of a retrospective law is so perfect, as to comprehend all civil cases, that come within the 23d article. Any law subjecting a person to loss or detriment, or imposing an obligation on him on a past consideration, or made to apply to existing cases, is retrospective. A law enhancing the measure of damages in civil actions on past cases is equally prohibited by this article, as a law that enhances the punishment of a crime already committed. There can be no doubt, that such a law is retrospective, and it makes the case no clearer to compare it with the definition of the defendants' counsel. No vested right is impaired, in the case put, more than there is by the statute now in question. In one case the party's money is recovered from him, on a past consideration, in the form of damages. In the present case, he would be compelled by the statute, on such Society, &c. vs. Wheeler. past consideration, to part with his money, or else lose his land, and either alternative is equally exceptionable. At the October Term, 1814, in Massachusetts, the following opinion was delivered by STORY, J. This is a writ of entry sur disseisin, brought on the demandants' own seisin, and a disseisin by the tenants within thirty years; the writ bears teste on the 22d December, 1807. The tenants, at May Term, 1808, having pleaded a plea to the jurisdiction, which was overruled by the Court, afterwards pleaded the general issue nul disseisin and at the present October Term of this Court, a verdict was found for the demandants; and also the value of the improvements made by the tenants on the demanded premises, pursuant to the statute of New Hampshire of the 19th of June, 1805. After the verdict, a motion was made by the demandants for a judgment on the verdict at common law, and writ of seisin thereon, without any regard whatever to the provisions of the statute of 1803, or the value of the improvements found by the verdict, principally upon the ground, that this statute was unconstitutional. A cross motion was also made by the tenants in arrest of judgment, upon the ground that the demandants were, by their own shewing, alien enemies, and therefore not entitled farther to pursue the present action. These motions have been ably argued, and the decision, which after much deliberation I have formed, will now be pronounced. And first, as to the motion in arrest of judgment. The demandants are described in the writ, as "The Society for the propagation of the Gospel in foreign parts, a corporation duly constituted and established in England, in the dominions of the King of the United Kingdoms of Great 31 Acts (edition 1805,) p. 395, ed. 1815, p. 170. Society, &c. vs. Wheeler. Britain and Ireland; the members of which society are aliens and subjects of the said king." If from this description, and the other facts apparent upon the record, the Court must intend, that the demandants have not a capacity farther to pursue the present action, then the motion must prevail. If, on the other hand, by possibility, and consistently with the facts on the record, such capacity can remain, then judgment must pass upon the verdict for the demandants. There is no pretence for holding, that the mere alienage of the demandants would form a valid bar to the recovery in this case, supposing the two countries to be at peace; for however true it may be, in general, that an alien cannot maintain a real action, it is very clear that either upon the ground of the 9th article of the British treaty of 1794, or upon the more general ground, that the division of an empire works no forfeiture of rights previously acquired, (and in point of fact the title of the demandants was acquired before the American Revolution) for aught that appears upon the present record, the present action might well be maintained. The whole objection therefore must rest on the existing war. 33 The defence of alien enemy is by no means favoured in the law; and some modern cases have gone a great way in discountenancing it; farther indeed, than seems consistent with the general rules of pleading. In Casseres vs. Bell, the court held, that the plea of alien enemy must not only aver such hostile character, but also set forth every fact that negatives the plaintiff's right to sue; and this decision is expressly put upon the mere ground of authority. On a 32 Kelly vs. Harrison, 2 John. C. 29.-Jackson vs. Lunn, 3 John. C. 109. 33 & T. R. 166. |