93 N.C. 405 | N.C. | 1885
This action, instituted to establish the plaintiff's title to the land described in the complaint and to recover the possession, terminated at Spring Term, 1882, of Lenoir Superior Court, in a judgment for the plaintiffs in the following form:
"This action coming on to be heard, it is ordered and adjudged, with the consent of all the parties thereto given in open court, that the plaintiffs were entitled to the lands in the pleadings mentioned in fee simple absolute, at the commencement of the action and up to the last term of the court, since which time the plaintiff B. T. Justice has conveyed his undivided one-third interest to the defendants, Alice Ferrebee, W. W. Ferrebee, J. W. Dawson and wife, S.E. Dawson, W. T. Caho, Israel Boomer, J. L. Bryan, J. W. Brabble, John H. Nichols, J. O. Baxter, and Jas. S. Lane:
"And it is further ordered and adjudged, consent being given in manner aforesaid, that the plaintiffs do recover of the defendants aforesaid the possession of the said lands, the execution to be suspended until the question of betterments can be determined according to law: Provided, that the defendants do proceed without delay; and provided further, that the value of the use and occupation of the said lands by the defendants shall be determined in said proceedings in respect to betterments."
There upon the defendant J. O. Baxter applied to the court, by petition, wherein he alleges that, holding the premises under the deed purporting to convey the fee and believed by him to pass the title, he has made permanent improvements upon the land, and prays that he may be allowed for the same over and above the value of the use and occupation of the land under the provisions of the statute. The Code, sec. 473.
The plaintiffs answer and contest the claim, and upon an issue (407) submitted to the jury they find that the petitioner is not entitled to the betterments. From the judgment rendered against the petitioner, and directing execution to issue for the recovery of possession, the petitioner appeals to this Court.
The facts connected with the trial as stated in the case on appeal, so far as necessary to elucidate the ruling of the court intended to be reviewed, are as follows: *352
The petitioner offered in evidence a deed purporting to convey the premises executed on 26 May, 1855, by Jno. H. Hampton to Willoughby D. Ferrebee, and a deed for the same land executed on 16 July, 1870, by the latter and his wife Alice to the petitioner, both of which had been duly proved and registered. The petitioner, examined on his own behalf, testified that in the year 1866, the date of the deed of Ferrebee to him, he went into possession of the land set forth in his petition— being the same described in the conveyance from Ferrebee to him — under said deed which was believed by him to be good, and without any actual notice or knowledge whatever of any defect in his title or that of his grantor. That under said deed and title, believed by him to be good and without defect, he made lasting and permanent improvements on said land. That the land was woodland, none of it being cleared. That he cleared all or most of it, fenced, ditched, and put it in a fair state of cultivation. That he built thereon a dwelling house, barn, stables, and other necessary outhouse. That the enhanced value of the land by reason of the permanent improvements placed thereon is two thousand two hundred and fifty dollars.
That the land at the time he went into possession of it was worth two hundred dollars. That the value now, including all improvements, is two thousand five hundred dollars. That the value of the land now without the buildings placed thereon by defendant is about sixteen to eighteen hundred dollars. That a fair annual rental of the land since the year 1879 including improvements is one hundred dollars; a fair annual rental of the land in the condition when defendant (408) entered on the land was about twenty-five dollars.
W. T. Caho testifies to the same thing in substance.
It was admitted that Mary B. Justice owned said land and that, while an infant, she married Alexander Justice on 19 March, 1846, and that she became of age on 26 May, 1848, and died on 30 July, 1862, and that Alexander Justice died on 9 June, 1879, and that the plaintiffs are the children and heirs at law of said Mary B. Justice by said Alexander Justice. That Mary B. Justice and Alexander Justice, her husband, executed a bond for title to this land on June, 1847, to one Nichols, from whom the defendant Baxter, through several mesne conveyances, derived title, the conditions of which bond was that Mary B. Justice and her husband, Alexander Justice, would make a deed for the said land to the said Nichols when the said Mary B. Justice became of age. That the said deed was never made. The court instructed the jury that the defendant Baxter was not entitled to betterments and could not recover anything, notwithstanding he may have had no actual notice of any defect in his title, and, under, a title believed by him to be good, made permanent improvements on the land. *353
The instruction given and guiding the jury to their verdict, that the petitioner was entitled to no compensation for improvements bona fide
made and in the belief that he was the owner of the estate, seems to have proceeded, and such was the course of the argument in behalf of the appellees, upon the ground of a constructive notice of his defective title, in that in tracing it back he would have made the discovery that the estate was in a former feme covert owner, and had never been divested by any valid conveyance or contract on her part to convey. In support of this view counsel rely on Thompson v. Blair,
The case of Merritt v. Scott,
It is not necessary to proceed further, since most clearly, upon the petitioner's statements, he was entitled to compensation under the provisions of the act, and the court erred in ruling that he was not. The judgment is reversed, and it is ordered that a venire facias issue, to which end this will be certified to the court below.
Error. Reversed.
Cited: Barker v. Owen,