36 S.E. 1001 | S.C. | 1900
September 13, 1900. The opinion of the Court was delivered by This is an action under the betterment act, and the appeal is from an order of nonsuit. The documentary evidence introduced showed that Erwin J. Boatwright died intestate, seized of a tract of land in Aiken County, leaving as his only heirs at law his widow, Olivia Boatwright, and the defendants, his children. That after *546 the death of Boatwright, this land was assigned to said widow and children as a homestead. That said land, assessed in the name of Olivia Boatwright, was sold for taxes, and the plaintiff became purchaser, took sheriff's title, dated October 7, 1895, and immediately entered into possession of the land, enjoying the rents and profits. In May, 1889, the defendants brought action for partition of said land against Hall, alleging substantially the foregoing facts, and also that Hall had acquired by purchase at a tax sale the one-third-interest of Olivia Boatwright in said land. Hall, in his answer to said suit, did not deny any of the facts alleged in the complaint. He contended himself with denying "that the plaintiffs have title to the land described or any part thereof, or that they are entitled to the relief demanded;" alleging also that "he has legal title to the premises;" and as a third defense alleging that he had purchased said land at a tax sale more than two years before the commencement of the action. As if this raised an issue of title paramount, the matter was submitted to a jury, which rendered a verdict in favor of plaintiffs "for a two-thirds undivided interest in the land in dispute." Thereupon a decree was rendered for a sale of the land for partition, allotting to said Hall one-third of the proceeds. Within forty-eight hours after such judgment, plaintiff brought this action for betterments. In addition to the foregoing, it appears in the original "Case" that plaintiff introduced oral testimony "tending to show that improvements of some considerable value had been put by him on the land described in the complaint." At the hearing the "Case" was amended by consent, so as to state that the plaintiff also introduced testimony that at the time of the purchase he believed his title good in fee.
The reasons given for the nonsuit by the Circuit Court may be briefly stated thus: that the betterment act contemplated a recovery of the land in toto and not a mere interest therein; that the object of the act was to supply a remedy for one who was ejected in a suit at law, and that a cotenant *547 who makes improvements has a complete remedy in equity. We think there was no error in granting the nonsuit.
By his first exception, appellant imputes error in holding that he could not recover the value of his improvements placed upon the land in a separate action. Under the betterment act, it is incumbent on the plaintiff to show, not merely the value of his improvements, but he must present evidence from which the jury could find a special verdict, stating the value of the land without the improvements, and the value of the land with the improvements, the value of the improvements being the sum which the land should be found at the rendition of the judgment to be worth more in consequence of the improvements than it would have been worth had no improvements been made. Evidence merely tending to show that improvements of some considerable value had been put on the land would not warrant sending the case to the jury. On this ground the nonsuit is sustainable, although it was not placed upon such ground.
But further, the betterment act was not intended to furnish a remedy for a tenant in common who made improvements on the common property. By common law, the owner of the fee is the owner of all the structures and improvements on the land; therefore, one making improvements upon the land of another, would lose his improvements on recovery of the land from him by the true owner, and he was without remedy. The betterment act was intended to relieve this condition and give a remedy. As stated by Mr. Justice Gary, in Tumbleston v. Rump,
The judgment of the Circuit Court is affirmed. *551