102 Ga. 1 | Ga. | 1897
In 1886 Hagar Reynolds, or Randall,. died intestate in possession of a tract of land containing about two acres, to which she held title. There has been no administration on her estate. In 1887, Ned Randall, who was then in possession of the land claiming it as his own, induced his daughter Lucinda Dudley to move upon the land with her daughter Henrietta Dudley, and in 1890 conveyed the land to
Upon the trial of the case, after hearing the evidence, the court passed an order as follows: “It appearing to the court,
At the trial, deeds recorded in 1892 and 1893 were introduced, showing title in Hagar Reynolds, and it was admitted that she died intestate and in possession of the premises. It appeared from the evidence that she left no child surviving her. She was a person of color, and before emancipation had lived with Ned Randall, under whom the defendants were claiming, and he was also a person of color and a slave of the same master. “By the master’s consent they were man and wife.” A witness testified that they were married “like slavery-time marrying”; that Ned had no other wife; and that they lived together as man and wife until they got free. The same witness afterwards testified that they were not living together when they were freed. It was admitted that in 1869 Hagar Reynolds was married to Henry Stewart under a license. He lived with her a short time afterwards, and went off There was evidence that Hagar and Ned Randall lived together again, and were living together at the time of her death. There was also evidence that she lived with Charles Saffold, a colored man, as his wife, before and at the time of emancipation, and afterwards until his death. Hagar had one sister, Sarah, and two brothers, Baz and Bill, all of whom were children of Hagar’s mother. Plaintiff Lucius Johnson is the only child of Hagar’s sister Sarah, who died in July, 1895. Plaintiff Susan Jenkins is the widow of Oliver Jenkins deceased, a son of Hagar’s brother Bill; and plaintiff America Jenkins is the only child of Oliver and Susan. Hagar’s husband Henry Stewart, her brothers Baz and Bill, a daughter of Bill named Adeline, and other persons who, if alive, would be
The court ruled out the testimony of Lucinda Dudley, offered on the part of the defendants, that she was induced by her father, Ned Randall, who was then in sole possession of the premises in dispute, to move upon the premises, and if she would care for and maintain him and improve the place, it should be hers and her child’s at his death; and that acting upon, this promise she did move upon the place, did care for and maintain him, improved the place, preserved it and paid the taxes thereon, he telling her that it was his property. To the ruling out of this testimony the defendants excepted.
The court ruled out offered testimony of Lucinda Dudley, that she, in company with her father and others, on the day of the execution of the deed under which she claimed, went to the office of Calvin George, a competent attorney, and after hearing all the facts and examining the deeds to Hagar Randall, said attorney told her that her father could give her good titles, and then drew the deed to her, and'it was immediately put on record; and that after this the defendants made additional improvements on the premises. To the rejection of this testimony the defendants excepted.
The controlling question in the present case is, whether the court erred in directing a verdict in favor of the plaintiffs; and the solution of that question involves the determination of another: whether a bona fide purchaser who enters under an independent and adverse claim of title is, when sued in ejectment by the true owner, entitled, upon filing an equitable plea, to set off improvements made by him to the extent of the mesne profits, and in addition, to a decree in his favor against the owner for any excess of value in improvements made by him after the allowance of mesne profits to the plaintiff. The ancestor of the plaintiffs died in possession. They
This question has often been approached by this court, but never determined. In dealing with the subject of improvements, our Civil Code, § 3753, makes this provision: “Against a claim for mesne profits, the value of improvements made by one bona fide in possession under a claim of right, is a proper subject-matter of set-off.” The Civil Code, § 5087, in dealing with a trespasser, provides: “A trespasser can not set off improvements in an action brought for mesne profits, except when the value of the premises has been increased by the repairs or improvements which have been made. In that case the jury may take into consideration the improvements or repairs, and diminish the profits by that amount, but not below the sum which the premises would have been worth without such improvements or repairs.” In the case of Beverly v. Burke, 9 Ga. 440, the principles announced in both sections of the code above quoted are recognized and applied. The case of McPhee v. Guthrie, 51 Ga. 83, is authority only for the proposition that, as against the holder of a prior mortgage' lien, one who purchases land in good faith and makes valuable improvements upon it is entitled to be paid for such improvements; leaving the mortgage lien intact upon the property as it stood before it was improved; and that in such a case, upon an
In Dean v. Feely, 69 Ga. 804, this court only went to the extent of allowing the purchaser for value without notice to set off improvements against all mesne profits before, as well as after, their erection, there being no doubt about the bona, fides of the purchaser; but the ruling in that case allowed the purchaser only to extinguish mesne profits, but not to trench at all upon the corpus. Indeed, in the case last cited, the court expressly reserved the question here made for future consideration, and said: “ The defendants have argued their right to have a verdict for any excess in value of improvements over the rents, which should constitute a lien upon the land for the payment of such excess. The pleadings in the case do not make the question, and no ruling of the court below upon that subject is excepted to and brought here for’ our review; we therefore decline to decide the point.”
In the case of Clewis v. Hartman, 71 Ga. 811, this court ruled: “A plaintiff in ejectment having abandoned all claim
In the case of Tripp v. Fausett, 94 Ga. 330, this court ruled : “One who enters upon land under a conveyance from one not in possession and, so far as appears, not .having any color of title, enters and improves the premises át his peril; the true owner is under no obligation to account to him for taxes paid, or for the' costs of improvements over and above the mesne profits accruing from the land during the period of his occupation.” The court in that case ruled that one who enters under such circumstances is not entitled to the value of his improvements over and above mesne profits; it does not decide that one entering under different circumstances and in good faith would be so entitled.
A similar question was again made in the case of McLendon v. Horton, 95 Ga. 54, but again the circumstances under which it was presented to the court did not require its determination. In that case this court said: “The court, upon motion, struck so much of the defendant’s plea as claimed a judgment for the excess of improvements over mesne profits, but allowed the plea to the extent of permitting the one to be set off against the other. Exception was taken to this ruling. In addition to this, exception was taken to certain instructions to the jury, to the effect that they might consider the value of the improvements, and allow such value as a set-off against mesne profits. Whether or not error was committed in this ruling, or in these instructions, is not material. The undisputed testimony shows that the sum of the mesne profits, after allowing all reasonable'charges for taxes and street assessments paid by the defendant, was considerably in excess of the value of all improvements made by him; and as the jury did not find any sum for mesne profits, the set-off was much more favorable to the defendant than he had a legal right to expect, and this can not be made a cause of complaint by him.”
Thus we have shown that the question now for consideration
The General Assembly, by making provision upon this subject, will be presumed to have settled the policy of this State with respect to the allowance for improvements; and it should be left to the wisdom and discretion of that body to say whether rights, in addition to those stated in the sections of the code above referred to, should be conferred upon persons who enter, whether in good or bad faith, upon the property of another, and make valuable improvements thereon. In the present condition of our statute law, we find no warrant for the doctrine contended for by the defendants in this case; and, therefore, affirm the judgment of the court denying a new trial.
Judgment affirmed.