¶1The Opinion of the Court was delivered by
¶2The only question in this case is, whether the assignee of a subsequent mortgage seeking to re,deem from a foreclosure under a prior mortgage to which he was not a party, is bound to pay for improvements made upon the land by the purchaser under the decree of foreclosure after the filing of the bill to redeem.
¶3The Master in stating the accounts 'between the parties, allowed the appellee two hundred dollars for improvements made under such circumstances, and his report was approved by the Court.
¶4This was clearly erroneous. After bill filed, the appellee had full notice of appellant’s intention to redeem, and if, under such circumstances, he went on to make improvements by clearing and reducing to cultivation a portion of the land, he acted as a volunteer, and it would be unjust to compel the appellant to pay for such improvements.
¶5To allow for improvements made under such circumstances would be establishing a principle that would put it in the power of the mortgagee in possession in many instances, even after suit brought, to defeat the redemption altogether, by making improvements that the party entitled to redeem could never pay for.
¶6The law will nof allow one person to make another his debtor in this way. New improvements made by a mortgagee in possession have sometimes been allowed and sometimes not. When allowed, the allowance is made to depend upon the particular circumstances of the case, and is considered rather as an exception to a general rule than the rule itself. 4 Kent’s Com._167, and note; 1 Johns. Ch. R. 387; 10 Paige, 49; 6 Gill and Johns. 275.
¶7We know of no case nor have we been referred to any, where a party entitled to redeem has been charged with improvements made after suit brought to redeem.
¶8In this case no complaint is made of the allowance for repairs and improvements made before complainant filed his bill.
¶9The decree of the Circuit Court is reversed at the costs of the appellee and the cause remanded, with directions to have the accounts between the parties re-stated, so as to reject the claim of defendant for clearing and improving land since this suit v/as instituted, and also so as to disallow the increased rents and profits arising from the land in consequence of improvements made since that time.
¶10Decree reversed.