74 Miss. 459 | Miss. | 1896
delivered the opinion of the court.
The sale of the lands in controversy by the former guardian of appellant, on April 26, 1879, was not only never reported to nor confirmed by the court under whose decree 'the same was made, but there is a total failure of evidence showing any attempt at compliance with the terms of sale prescribed by the decree. There is a recital, vague and inferential, in the guardian’s deed to the purchasers at that sale, of his receipt of half the price bid from the purchasers, in cash; but this was before any report or confirmation of sale (there never having been, in fact, at any time, any report or confirmation, as already stated), and, under well-known rules of law in such cases, this half of the bid thus handed over in cash to the guardian, was merely a delivery to him as a depositary of the purchasers. As to any payment of the deferred half of the price bid by the purchasers at that sale, the record is silent. The sale was made without
Two errors are assigned as grounds for reversal on the direct appeal, viz.: (1) The court erred in allowing defendants to recover for the value of improvements made by them on the land, and (2) the court erred in allowing defendants to recover the cost of such improvements, instead of the amount by which the same was shown to have enhanced the value of said land. We consider these in their order. In Learned v. Corley, 43 Miss., 687, this very question of the right of a purchaser whose title was derived through a sale, under a decree of court never reported and confirmed, to claim compensation for improvements by a claim of title honestly entertained, was considered and determined agreeably to the view upon which appellant’s first assignment of error rests. The reasoning of the court in that
Slaving thus shown that what was said in Learned v. Corley on this proposition was dictum, and having declared the dissent of the court from the erroneous view embraced in that
But Cole v. Johnson has been cited with approval and relied upon as settled authority over and over and over again by this court. Gaines v. Kennedy, 53 Miss., 103; Morgan v. Hazlehurst Lodge, 53 Miss., 665; Emrick v. Ireland, 55 Miss., 390; Holmes v. McGee, 64 Miss., 129; Stewart v. Matheny, 66 Miss., 21. In the last name dcase, Cole v. Johnson and Pass v. McLendon, 62 Miss., 580, are both cited, and both approved and adhered to, and are shown not to be in conflict. Said Judge Campbell, in Stewart
“ But the purchaser of land must be conclusively presumed to know what appears on the face of the title papers under which he claims, and this presumption cannot be rebutted or explained away. He must take notice of his title as being to a life estate or a fee, where that title is plainly disclosed by the records accessible to him, and not to examine which, ordinarily, would be gross negligence. ’ ’
. The defendants were clearly entitled to compensation for improvements, as well as taxes, under an unbroken line of decisions in this state, beginning with Cole v. Johnson, they claiming the lands on which the improvements were put under some deed acquired in good faith.
We are. thus brought to consider the measure of the recovery for improvements, the second assignment of error being that the court mistook the law in permitting the defendants to re
The report of the commissioner in the case in hand shows that the present value of the lands without the improvements is $500, and with the improvements $1,500; and yet, by the decree of the court below, the improvements, exclusive of taxes paid by defendants, are valued at $1,600, which makes the improvements alone worth $100 more than the land and improvements together. Manifestly, the sum of $1,600 is the amount expended in making the improvements, or estimated to be necessary to replace the improvements if they were taken away, and not the amount of the enhanced vendible or rental value of the lands. And this enhanced vendible or rental value is synonymous with the statutory words £ £ actual cash value of such improvement.” The enhanced vendible or rental value means nothing more or less than the actual cash value of the improvements, if they were sold for their fair value, as they affect the vendible value of the land.
It follows that the court below erred in allowing defendants-the cost of the improvements instead of allowing them the amount of the enhanced value imparted to the land by reason of the improvements, and for this error the decree will be reversed.
On the cross appeal, we have to say that we have already considered the action of the court below in declaring Frances Hicks to be the owner of the land, and it is unnecessary to repeat what has been said already. We see no error in the action of the court in any other particular. Reversed on direct appeal, and affirmed on cross appeal.
Reversed and remanded.
T. II. Campbell and Brame ds Alexander, for appellees, filed separate suggestions of error, insisting that if in the accounting the court below erred against appellant in allowing the cost value of the improvements, it also erred against the appellees in charging the increased rents resulting from the improvements; and that if there was a reversal of the appeal on the one account, there should also be one of the cross appeal on
Wooes, C. J., delivered the following response to the suggestion of error.
In the opinion of this court, in which error in now suggested, we held that the defendants below — appellees here — were to be allowed the sum of the enhancement in value of the lands, imparted to them by reason of improvements made upon them by defendants, and not the sum of the cost of making such improvements, nor the sum necessary to replace the improvements if they were considered as removed and not on the lands. The correlativ.e of this rule was also bound up in the former opinion delivered ■ by us, to wit.: that the defendants were properly chargeable with the enhanced rental value of the lands after the improvements were made or placed upon them. The full rule is, allowance to defendants for improvements to the extent of the enhanced vendible value of the lands imparted by such improvements, and liability for enhanced rental value imparted by the same improvements. This rule is so just, so reasonable, so fair to both parties, that we must adhere to it.
The suggestion of error is based upon a total misapprehension of the scope and effect of the former opinion, in so far as it assumes that the enhanced vendible value of the lands by reason of the improvements, was either found by the court below or passed upon at all by us. The decree of the court below found nothing and settled nothing as to the enhancement in the vendible value of the lands imparted to them by the improvements, and, necessarily, our former opinion does not even refer to this question. On the return of the case now to the court below, that court will examine and determine, for the first time, this very question.
Suggestion of error overruled.