79 S.E. 425 | N.C. | 1913
This was an action to set aside and annul certain deeds. There was verdict and judgment in favor of the plaintiff, and the judgment was affirmed in this case,
The only point presented is as to the correctness of the judgment. The court signed judgment against the plaintiff for $700 betterments without any deductions for rents and profits adjudged to the plaintiff in a former trial, which the law provides shall be deducted, and without regard to the fact that the plaintiff and the feme defendant are still tenants in common, and that the feme defendant will get the benefit of the improvements equally with the plaintiff. To charge the plaintiff with the whole of the added value would be contrary to law and natural justice as well.
(139) Where there is a partition of property, the party making betterments is entitled to have the part improved by him allotted in his share, in which case he recovers nothing for the betterments which he has placed upon the property which has thus become his own. Pope v. Whitehead,
There was a former judgment in this case at November Term, 1912, which was affirmed,
The plaintiff tendered a judgment charging himself with one-half of said $771.88, with interest, and for $350, one-half of said betterments, and charging the defendants with one-half of the rents and profits, with interest. By this calculation the defendants would recover of the plaintiff $184.39. This calculation and adjustment is correct, and the court should have signed the judgment tendered by the plaintiff. The latest case on the subject of betterments is Whitfield v. Boyd,
We cannot, however, agree with the contention of the plaintiff, that betterments are only allowed, under the statute, in ejectment. There *113
is no such restriction therein. Indeed, if no petition for betterments had been filed, it is generally recognized that when tenants in common have partition they are entitled to lands on which they (140) have made improvements assigned to them without credit for the improvements placed thereon. Pope v. Whitehead,
The amount of rents set off against the claim for betterments does not exceed those accruing within three years before the beginning of this action. The other rents and profits were set off against the lien paid off by the defendants, an adjustment decreed by the judgment of November Term, 1912.
The judgment should be set aside and a new judgment entered in the court below in accordance with this opinion.
Reversed.
Cited: McKeel v. Holloman, ante, 135.