¶1 (dissenting): The appellant’s first exception is as follows:
“That his Honor, the presiding Judge, erred in finding that the jury by its verdict fixed the value of the premises described in the complaint, without improvements, at two thousand five hundred ($2,500.00) dollars; it being respectfully submitted that the verdict of the jury does not ascertain or fix the value of the land without improvements.”
¶2 The exception correctly states the ruling of the presiding Judge in his decree :
“The jury by its verdict fixed the value of the premises described in the complaint, without improvements, at $2,-500.00.
¶3 The verdict was:
Value now with improvements ..............$ 3,750.00
When purchased .......................... 2,500.00
We find for plaintiff ...................... 1,250.00
¶4 I think that the jury intended that the words “with improvements” should be supplied after the word “purchase,” on the second line, so that the verdict would read:
Value now with improvements ..............$ 3,750.00
Value when purchased, with improvements..... 2,500.00
*102 We find for plaintiff ...................... 1,250.00
¶5 —and that the presiding Judge was in error in the holding excepted to. If, then, $2,500.00 represented the value of the property with improvements at the time the claimant for betterments purchased, and that was deducted from the present value, with improvements, $3,750.00, it is clear that in the difference, $1,250.00, the claimant was allowed only for the improvements which he had placed upon the property, and nothing for what had been placed there by his predecessors in title, to which he was clearly entitled. In fact, the latter, a part.of the $2,500.00, would have improperly increased the subtrahend and necessarily decreased the remainder.
¶6 The rule of the statute is perfectly simple and plain (Section 5297) :
From the value of the land at the time of the rendition of the judgment in ejectment, including all improvements............................$.....
Deduct the value of the land at the same time, without the improvements made by the claimant and his predecessors in title.......................$.....
The remainder ..............................$.....
—will represent “the sum which such land shall be found at the time of the rendition of such judgment to be worth more, in consequence of improvements so made, than it would have been had no -improvements or betterments been made, which shall be deemed to be the value of such improvements or betterments.”
¶7 The testimony was directed to the issue above indicated. Upon the trial of the cause the appellant, as plaintiff in the betterments suit, adduced testimony for the purpose of establishing the value of the improvements made by him and his grantors and predecessors, with the view of showing how much more the premises were worth in consequence of the improvements so made than they would have been had no *103 such improvements or betterments been made. The defendants in the betterment suit adduced testimony for the purpose of establishing the extent of the damages done to the premises by the appellant and his grantors and predecessors, with the view of showing that the amount of damages offset the amount of improvements. In view of the issues made by the pleadings and the testimony in support of the respective contentions of the parties, there is only one construction to be placed upon the verdict of the jury, and that is that the plaintiff himself, between 1919 and 1924, when the suit to recover the land was commenced, placed improvements upon the land to the extent of $1,-250.00, and in the valuation of $2,500.00, fixed by the jury as of the date of the purchase of the property by the appellant, there is included all the improvements made by the appellant’s grantors and predecessors. Therefore, the verdict does not show the present value of the premises without improvements which extended over a period of 38 years.
¶8 It is manifest, I think, that the verdict did not comply with the law. The first item was entirely correct: “The value now (that is at the time of the rendition of the judgment) with improvements, $3,750.00.” The second item is entirely incorrect; it should have been: “The value now (that is, at the time of the rendition of the judgment), without improvements.” Instead it declared the value when purchased, with improvements (the latter supplied by implication). Instead of declaring the value now, without improvements, it declared the value then (at the time of the purchase), with improvements. With the false factor present, the result was obliged to be wrong.
¶9 It has been suggested that it was incumbent upon the claimant to have the verdict corrected at the time of its publication. The appellant’s objection is not to the form of the verdict, which may have been clear in the indication of its intent, but to the construction of that verdict by the presiding Judge. By the construction contended for by the ap *104 pellant, in which I concur, the verdict upon its face is void. If there was an obligation upon any one to have it corrected, the obligation was upon the respondent as heavily as upon the appellant. I do not understand that one who is dissatisfied with an irregular verdict, not simply upon the ground of irregularity, but in its essence and effect, is under an obligation to have it corrected, to tighten the noose around his own neck.
¶10 I see nothing uncertain or ambiguous about the verdict. It clearly meant to find that the present value of the property with improvements was $3,750.00 and that the value at the time the appellant bought it with improvements, was $2,500.00. This is strongly indicated by the conceded fact that the appellant had paid $2,500.00 for it, which, of course, carried all improvements. How could the Judge have ordered it corrected? If he had recommitted it to the jury, with instructions to indicate whether they meant the $2,-500.00 to represent the value with or without improvements, the great probability is that they would have returned with a verdict expressing just what it does, “with improvements.”
¶11 The presiding Judge construed the verdict differently, as indicated above. Mr. Justice Blease concurs in such construction. So that there is simply a difference between us as to the proper construction. Whichever one is right, it is plain that there was no necessity for a correction of the verdict, and no occasion for the appellant to move.
¶12 As to the second exception, I reserve my opinion. There is a direct conflict between Section 5300, relating to the sale, and other sections. As Section 5296 confers the right to betterments, and 5299 provides for the judgment and lien, and 5300 is directory only, I am inclined to think that Section 5300 must give way.
¶13 My opinion is that the verdict and decree should be set aside, and the case remanded for a new trial.