allowed by the court), a statement of his claim therefor, in case judgment be rendered for the plaintiff. 16 Gratt., 336. Sec. 2754. How allowed.-In such case, the damages of the plaintiff, and Id., 33. the allowance to the defendant for improvements, shall be estimated, and the balance ascertained, and judgment therefor rendered, as prescribed in chapter one hundred and twenty-five. Id., 235. 4 Munf., 382. Sec. 2755. Postponement of assessment and allowance.-On the motion Id., 234. of either party, the court may order the assessment of such damages and allowance to be postponed until after the verdict on the title is recorded. Sec. 2756. Judgment to be conclusive.-Any such judgment in an action of ejectment instituted after the first day of July, eighteen hundred and fifty, shall be conclusive as to the title or right of possession established in such action, upon the party against whom it is rendered, and against all persons claiming from, through, or under such party, by title accruing after the commencement of such action, except as hereinafter mentioned. 23 Gratt., 331. See. 2757. Saving in favor of persons under disability.-If any person Id., 336. against whom such judgment is rendered shall be, at the time of the judgment, an infant, married woman, or insane, the judgment shall be no bar to an action commenced, within five years after the removal of such disability. This section shall not apply to a married woman against whom a judgment is rendered in a suit for land which is her separate estate. Sec. 2758. Recovery of mesne profits, &c., not affected.-Nothing in this Id., 237. chapter shall prevent the plaintiff from recovering mesne profits, or damages done to the premises, from any person other than the defendant, who may be liable to such action. Sec. 2759. Writ of right, &c., abolished.-No writ of right, writ of entry, Id., 38. or writ of formedon, shall be hereafter brought. 2760. How defendant may apply therefor, 2763. How value of improvements esti- 2767. How tenant for life, paying for im- trustees. Ser. Sec. 2760. How defendant may apply therefor, and have judgment sus- Code 1849, pended. Any defendant against whom a decree or judgment shall be P.563, c. 136, 21. i Wash., 336. rendered for land, where no assessment of damages has been made 1 Rand., 58. under the preceding chapter, may, at any time before the execution of 23 Gratt.. 266. 33 Gratt., 685. the decree or judgment, present a petition to the court rendering such 78 Va., 468, 483. 2 Rand., 6. 79 Va., 415. 81 Va., 95. Id., 22. Id., p. 564. 3. Id., 24. Id., 25. Id., 26. Id., 27. Id., 28. decree or judgment, stating that he, or those under whom he claims, while holding the premises under a title believed by him or them to be good, have made permanent improvements thereon, and praying that he may be allowed for the same over and above the value of the use and occupation of such land; and thereupon the court may, if satisfied of the probable truth of the allegation, suspend the execution of the judgment or decree, and impanel a jury to assess the damages of the plaintiff, and the allowances to the defendant for such improvements. Sec. 2761. How damages of plaintiff assessed.-The jury, in assessing such damages, either under this chapter or under the preceding chapter, shall estimate against the defendant the clear annual value of the premises during the time he was in possession thereof (exclusive of the use by the tenant of the improvements thereon made by himself or those under whom he claims), and also the damages for waste or other injury to the premises committed by the defendant. Sec. 2762. For what time.-The defendant shall not be liable for such annual value for any longer time than five years before the suit, or for damages for any such waste or other injury done before said five years, except where he claims for improvements as aforesaid. Sec. 2763. How value of improvements estimated in favor of defendant.— If the jury shall be satisfied that the defendant, or those under whom he claims, made, on the premises, at a time when there was reason to believe the title good under which he or they were holding the said premises, permanent and valuable improvements, they shall estimate in his favor the value of such improvements as were so made before notice in writing of the title under which the plaintiff claims, not exceeding the amount actually expended in making them, and not exceeding the amount to which the value of the premises is actually increased thereby at the time of the assessment. Sec. 2764. If allowance for improvements exceed damages, what to be done. If the sum estimated for the improvements exceed the damages estimated by the jury against the defendant as aforesaid, they shall then estimate against him, for any time before the said five years, the rents and profits accrued against, or damage for waste or other injury done by him, or those under whom he claims, so far as may be necessary to balance his claim for improvements, but in such case he shall not be liable for the excess, if any, of such rents and profits, or damages, beyond the value of the improvements. Sec. 2765. Verdict for balance, after offsetting rents, &c., against improvements.—After offsetting the damages assessed for the plaintiff and the allowances to the defendant for improvements, if any, the jury shall find a verdict for the balance for the plaintiff or defendant, as the case may be, and judgment or decree shall be entered therefor according to the verdict. Sec. 2766. Balance for defendant, a lien on the land.—Any such balance due to the defendant shall constitute a lien upon the land recovered by the plaintiff, until the same shall be paid. Sec. 2767. How tenant for life, paying for improvements, reimbursed.— If the plaintiff claim only an estate for life in the land recovered, and pay any sum allowed to the defendant for improvements, he or his personal representative may recover, at the determination of his estate, from the remainderman or reversioner, the value of the said improvements as they then exist, not exceeding the amount so paid by him, and shall have a lien therefor on the premises, in like manner as if they had been mortgaged for the payment thereof, and may keep possession of said premises until it be paid. Sec. 2768. Exception as to mortgagees and trustees.-Nothing in this Id., 29. chapter, nor anything concerning rents, profits, and improvements, in the preceding chapter, shall extend or apply to any suit brought by a mortgagee, or trustee in a deed of trust to secure creditors, his heirs, or assigns, against a mortgagor or grantor, in such deed of trust, his heirs, or assigns, for the recovery of the mortgaged premises or of the land conveyed by such deed of trust. Sec. 2769. When plaintiff may require his estate only to be valued.— Id., p. 565, § 10. When the defendant shall claim allowance for improvements, as before provided, the plaintiff may, by an entry on the record, require that the value of his estate in the premises, without the improvements, shall also be ascertained. 16 Gratt., 351. Sec. 2770. How estimated. The value of the premises in such case shall Id., 11. be estimated as it would have been at the time of the inquiry, if no such improvements had been made on the premises by the tenant or any person under whom he claims, and shall be ascertained in the manner hereinbefore provided for, estimating the value of improvements. Sec. 2771. How he may elect to relinquish his title to defendant.-The Id., 12. 33 Gratt., 278, plaintiff in such case, if judgment is rendered for him, may at any 287-8. time during the same term, or before judgment or decree is rendered on the assessment of the value of the improvements, in person or by his attorney in the cause, enter on the record his election to relinquish his estate in the premises to the defendant at the value so ascertained, and the defendant shall thenceforth hold all the estate that the plaintiff had therein at the commencement of the suit, provided he pay therefor the said value, with interest, in the manner in which the court may order it to be paid. Sec. 2772. How payment of such value to be made by defendant; when Id., ¿13. land sold therefor.-The payments shall be made to the plaintiff, or into court for his use, and the land shall be bound therefor, and if the defendant fail to make the said payments within or at the times limited therefor respectively, the court may order the land to be sold and the proceeds applied to the payment of said value and interest, and the surplus, if any, to be paid to the defendant; but if the said net proceeds be insufficient to satisfy the said value and interest, the defendant shall not be bound for the deficiency. Sec. 2773. When such value to be deemed real estate.-If the party by Id., 14 or for whom the land is claimed in the suit be a minor, or insane, or a feme covert and the land is not her separate estate, such value shall be deemed to be real estate, and be disposed of as the court may consider proper for the benefit of the persons interested therein. Sec. 2774. When and how defendant, if evicted, may recover from plain- Id., 215 tiff amount paid.—If the defendant or his heirs or assigns shall, after the premises are so relinquished to him, be evicted thereof by force of any better title than that of the original plaintiff, the person so evicted may recover from such plaintiff or his representatives the amount so paid for the premises, as so much money had and received by such plaintiff in his lifetime for the use of such person, with lawful interest thereon from the time of such payment. CHAPTER CXXVI. Code 1849, 4 Call, 252. 5 Gratt., 499. Sec. 2775. Tenant in possession liable for waste.-If any tenant of land p. 566, c. 137, 21. commit any waste thereon, or after he has aliened it, while he remains in possession, unless by special license so to do, he shall be liable to any party injured, for damages. Id., 2. Id., 23. Id., 4. 1876-7, p. 294, c. 290. Code 1849, Sec. 2776. Also tenant in common, &c.-If a tenant in common, joint tenant, or parcener commit waste, he shall be liable to his co-tenants, jointly or severally, for damages. Sec. 2777. Also guardian.-If a guardian commit waste of the estate of his ward, he shall be liable to the ward, at the expiration of his guardianship, for damages. Sec. 2778. Action therefor; if waste wanton, treble damages. -Any person, entitled to damages in any such case, may recover the same in an action on the case; and if it shall be found by the jury that the waste was committed wantonly, judgment shall be for three times the amount of damages assessed therefor. Sec. 2779. Waste, for tenant to sell or remove manure from leased premises. If a tenant at will or for years, without a special license so to do, remove by sale or otherwise from the leased premises, manure made thereon in the ordinary course of husbandry, consisting of ashes leached or unleached, collections from the stables, barnyard, cattle pens, or other places on the leased premises, or composts formed by an admixture of these or any of them with the soil or other substances, such removal shall be deemed waste and within the provisions of the preceding sections of this chapter. Sec. 2780. Punishment for waste committed during pendency of suit; p. 566, e. 137, 25. plaintiff may recover treble damages. If the tenant in possession of land, pending any suit to recover or charge the same, with knowledge of such suit, commit any waste on the land, the court in which the suit is, or the judge of said court in vacation, may, on petition of the plaintiff alleging such waste, verified by oath, and after reasonable notice to the said tenant, make an order forbidding the tenant to commit further waste on the land during the pendency of the suit, and disobedience of the order by the tenant, after he shall have been served with a copy thereof, may be punished as a contempt by the court in term or by the judge in vacation; and if the plaintiff' succeed in recovering or charging As to the law of waste, as applied in Virginia, see 6 Munf., 134; 1 Rand., 258; 2 Rob., 507. Injunction to stay waste. 1 H. & M., 17; 2 H. & M., 25; 4 H. & M., 424; 11 Leigh, 559; 75 Va., 150. the land, he may recover in an action on the case against him who committed the waste, three times the amount of the damages assessed therefor; but it shall be provided in the order aforesaid that it is not to take effect until the plaintiff, or some one for him, shall have given bond with sufficient surety before the said court or the clerk thereof in his office, in such penalty as the court or judge thereof shall prescribe, with condition to pay to the tenant, in case the plaintiff does not succeed in recovering or charging the land, such damages as may accrue to the tenant in consequence of said order. TITLE 38. RENTS, EMBLEMENTS, AND APPORTIONMENT. CH. 127. Of the assignment of lands under lease; the notice to terminate a tenancy; the recovery of rent, and right of re-entry. 128. Of emblements. 129. Apportionment of money coming due at fixed periods. CHAPTER CXXVII. OF THE ASSIGNMENT OF LANDS UNDER LEASE; THE NOTICE TO TERMINATE A Sec. 2781. Grantees and assignees to have same rights against lessees as Code 1849, lessors, &c.—A grantee or assignee of any land let to lease, or of the P. 567, e. 138, 21. reversion thereof, and his personal representative or assigns, shall enjoy against the lessee, his heirs, personal representative, or assigns, the like advantage, by action or entry for any forfeiture, or by action upon any covenant or promise in the lease, which the grantor, assignor, or lessor, or his heirs, might have enjoyed. Sec. 2782. Lessees, &c., to have same rights against grantees, &c., as Id., ? 2. against lessors.-A lessee, his personal representative, or assigns, may 4 Leigh, 69. |