29 W. Va. 333 | W. Va. | 1887
The Glen-Elk Company, being the owner in fee- of lot No. 9, in block S., in the village of Glen-Elk, near the city of Charleston, conveyed the said lot to Millard F.Da,wson by deed dated June, 1884, which was duly recorded at the time in Kanawha county. The said company by deed dated November 5,1884, conveyed this same lot to Ella M. Grow. In February, 1885, said Dawson brought his action of unlawful de-tainer in the Circuit Court of Kanawha county against said Grow for the possession of the lot. This action was tried by a jury and a verdict was found for the plaintiff, on which the court on March 26,1885, entered judgment, that the plaintiff recover of the defendant said lot.
During the same term, the defendant tendered her petition to the court stating, that, while she was in the possession of said lot and holding the same under a title believed by her to be good, she made permanent improvements thereon consisting of a dwelling-house and other buildings, which cost her $298.23. To the filing of this petition Dawson objected, but the court overruled the objection and allowed the petition to be filed. Dawson afterwards demurred to the petition and tendered his answer thereto; but the court overruled the demurrer, and upon objection to the answer
Among the errors assigned by the plaintiff in error are the following:
“ First — The court erred in allowing the defendant to file her petition for improvements in this action. It is claimed, that this was simply an action for the unlawful entry and detention of the possession of land, and that the judgment rendered therein was not a‘judgment for land,’such as is contemplated by the statute, under which the petition purports to have been filed.
“ Second — The court erred in overruling the demurrer to the petition.
“ Third — The cpurt erred in giving judgment for the petitioner on the facts proved in the case.”
The facts proved on the trial are all certified in the transcript before this Court; and I deem it unnecessary to consider any of the assignments of error except the third.
By the English law and the common-law of this country, the owner of land on recovering it, in an action at law was not bound to make compensation to the defendant for improvements made upon it by him, because the latter was presumed to have made them at his own risk. Improvements being considered as annexed to the freehold pass with the recovery. (2 Kent’s Com. 334). The rule of the civil law was more liberal and permitted one, who had made permanent improvements on land in his possession under the bona dde belief that he was the owner of it, to exact full compensation for the value of such improvements, less the value of the use of the land, before he could be compelled to surrender it. (Putnam v. Ritchie, 6 Paige 404). Courts of equity first adopted this rule of the civil law and applied it in all cases, where the owner of land resorted to equity for the recovery of rents and profits and insisted upon his doing equity by paying for the bona dde possessor’s
This was the full extent of the relief to bona ftd’e possessors of land both at law and in equity. Consequently, where the owner recovered his land in ejectment and made no claim for rents and profits, the bona tide adverse claimant, who had been ejected, could in no manner obtain any compensation for improvements made, while he was in possession of the land, however honest and reasonable his belief, that he was the owner, at the time. (Graeme v. Cullem, 23 Gratt. 296).
In order to extend the equitable principle thus adopted and applied, the General Assembly of Virginia enacted sec. 7 of chap. 72 of the acts of 1831-2, which in a modified form was re-enacted in the code of 1849 as chapter 136. This statute of Virginia is the foundation of the statute now in force in this State. Our present statute is found in chap. 91 of the Amd. Code, pp. 613-14. By the first section it is provided, in effect, that any defendant against whom there has been a judgment or decree for land, may present to the court a petition stating, that he, while holding the premises under a title believed by him to be good, made permanent improvements thereon, and praying, that he may be allowed the fair and reasonable value' of the same. The next section provides for the assessment of such value by a jury, and the fourth section is as follows :
“ If the'jury be satisfied, that the defendant or those, under whom he claims, made oirthe 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, as they are at the time such valuation is made.”
No person ought to be entitled to the favorable position of a lona hele holder of land, unless he entered and improved it in a case and under a title, which appeared to him after diligent and faithful enquiry to be free from suspicion. There is no moral obligation, which should compel a man to pay for improvements put upon his own land, which he never authorized, and which originated in a tort. (2 Kent’s Com. 338.)
It is only the Iona fide occupant, who is entitled to compensation for improvements; and it would be plainly inequitable to allow it to one, who acted with knowledge of the rights of the plaintiff. (Green v. Biddle, 8 Wheat. 1; Jackson v. Loomis, 4 Cow. 168; White v. Moses, 21 Cal. 34.)
Where the occupant had full means of obtaining knowledge of the plaintiff’s title, he will not be entitled to compensation for his improvements. (Barlow v. Bell, 1 A. K. Marsh. 246; Harrison v. Fleming, 7B. Mon. 537.)
In the case at bar there is no evidence even tending to prove, that the plaintiff was guilty of any fraud or laches. It is proved, that the plaintiff lived twenty miles from the lot on which the improvements were made ; and there is not a particle of evidence, that he had any notice or knowledge of the making of the improvements until this action was instituted. The plaintiff had caused his deed for the lot to be recorded; and this, it seems to me, was all the law required of him in order to preserve and give notice of his title. That reasonable diligence and enquiry, which is required of every one, who poses as a bona fide claimant, made it imperative upon the defendant here, by examining the records of the county, to ascertain whether or not her vendor had the legal title to the lot which she purchased. If she had made this examination, she would have found, that this lot had been conveyed by her vendor to the plaintiff but a few months before the attempted conveyance to her. She certainly had the ready means of knowing, that she had no title to the lot, and having neglected to avail herself of this means of knowledge she was neither a bona fide occupant of the lot, nor was she within the protection and benefits of our statute. (Jackson v. Loomis, 15 Am. Dec. 349 note; Woods v. Koebs, 33 Gratt. 685.)
It is, however, contended for the defendant in error, that it is immaterial, whether or not the defendant had the means of ascertaining, that her title was bad ; and that the real question is, whether in fact she believed her title good, at the time she made the improvements, that is, if she did not believe her title bad, she is entitled to compensation, although she may have had notice of facts, which proved her title invalid. This position is wholly untenable. It is in positive conflict with any fair and reasonable interpretation
It is further contended for the defendant in error, that our registry statutes, chap. 74 Amd. Code, have no application to this case. It is insisted, that the only effect of these statutes is to prevent the defendant from claiming to have been a bona 7lele purchaser without notice, of the lot conveyed to her by the Glen-Elk Company as against the plaintiff; and that they could not and were not intended to have any effect upon the belief of the defendant, at the time she made the improvements. This contention, it seems to me, is fully answered by what we have already said. No one, who is not a bona tide claimant of the land, can be allowed compensation for improvements. The recordation of the plaintiff’s deed was constructive notice to the defendant of the plaintiff’s title. As to that title she occupied precisely the the same position, as if she had had actual notice of it. She could not be a bona úde claimant as against the title of the plaintiff who had his deed legally recorded. The registration
REVERSED