The opinion of the court was delivered by
Mr. Justice Pope.
Mrs. Gilly Roberts, a widow, on the 5th
June, 1880, purchased a small lot, one-third of an acre, in the *526city of Greenville, from her own funds paid the purchase money, and had the title therefor made to her infant son, Michael J. Roberts, aged four years. The deed of conveyance was recorded in the office of the register of mesne conveyance on the day of its execution. At the time of its purchase, the lot was bare of improvements. In 1884 or 1885, the taxes being unpaid, one F. A. Schlapbach, a son-in-law of Mrs. Roberts, redeemed the land from its purchaser at tax sales for $25, and, under an arrangement with Mrs. Roberts, erected a second-hand building on such’ lot, in which he lived for a time and which he rented to others for a year at $1.25 per week. Some time after 1885, but prior to January, 1887, Mrs. Roberts intermarried withB. D. Harbin. In January, 1887, Harbin and his wife were destitute of means and homeless. Mrs. Harbin’s little son lived with them, but had no estate and no guardian. Under these circumstances, and at this time, application was made to Mr. W. T. Shumate, a contractor in that city, to make some improvements to the buildings then uninhabitable because of needed repairs. Mr. Shumate thought the property belonged to Mrs. Harbin. Under such contract, Mr. Shumate made improvements to the value of $184.54, and being paid $35, it left due him $149.54. Harbin and wife and the little hoy lived in the house for some time, but afterwards moved to Floyd County, in the State of Georgia, she renting the house out.
•On the 20th day of April, 1889, the said Shumate began his action in the Court of Common Pleas for Greenville County in this State against B. D. Harbin, Gilly Harbin, his wife, and the infant, Michael J. Roberts, as defendants, the summons therein being served by publication. The adult defendants answered as to the merits of the action. The infant defendant had a guardian ad litem appointed, and answered by such guardian ad litem. The issues being equitable, were tried by his honor, Judge Izlar. At the hearing, the defendants interposed the oral demurrer, that the complaint did not state facts sufficient to constitute a cause of action. The presiding judge, however, held the same under advisement, and allowed all parties to present all the testimony they desired in the questions raised in the pleadings. The foregoing summary presents the salient facts as developed by the pleadings *527and in the testimony at the trial. The Circuit Judge in his decree held that the demurrer should be sustained, and also that the court had ho jurisdiction of the parties, and therefore dismissed the complaint with costs. The plaintiff appeals to this court on grounds set up in the Brief.
1 At first we were inclined to adopt the conclusions of the Circuit Judge, but, upon reflection,- we must hold that he erred in both. The work done by the plaintiff was done upon premises located in the city of Greenville, which premises, he believed were owned by Mrs. Harbin, she being in control thereof, and under a contract made with her in relation to such premises. The subject matter- was, therefore, within the jurisdiction of the court and the contract made in relation thereto while all the defendants were residents of this State. Their removal to the State of Georgia afterwards could not destroy such subject matter, nor the contract made in regard to the same. Therefore, it seems to us, that under section 156, subdivision 4, both Mrs. Harbin and Michael J. Roberts wére necessary parties, whose presence in court could be obtained by the publication of a summons against them. This court has held that when a summons has not been served, and a party appears and pleads generally to the action, such appearance dispenses with the actual service. Code, § 160; Maxwell v. Lewis, 21 S. C., 598; Nesbitt v. Marshall, 24 Id., 510. As to the husband, Harbin, he appeared in the action and answered generally. He was not a necessary but a proper party. Lowry v. Jackson, 27 S. C., 323-4; Ross v. Linder, 12 Id., 592. So much for the question of jurisdiction.
2 The demurrer presents the very serious question here — it belongs to that class of cases that appeal very directly to the conscience of the court — shall one be allowed to enjoy the property of another, and he a stranger, without any compensation therefor ? Or, to put the matter in a different form, shall property, that was useless to one, be made to increase in intrinsic value and become the source of constant profit through the expenditure of the means of another, innocently made, without creating a legal necessity whereby the owner is made to compensate him through whom the improvements were made ? Quite *528often this question has been presented by one tenant in common, who has added largely to the value of the common stock by the expenditure of his own means, in a contest with the other co-tenants. In the case of Buck, Hefflebower & Neer v. Martin, 21 S. C., 592, this court announced: “Our cases have settled the question against the right of an improving tenant in common to the exclusive benefit of his improvements,” citing an array of authorities in support of such conclusion. In the same case this court goes on to say : “To this rule, however, there are well established exceptions. * * * When, however, improvements have been erected by a co-tenant, which add value to the common estate, and erected under circumstances which would make it a great and obvious hardship upon the improving tenant to deprive him entirely of the benefit of such improvements, throwing their whole value into the common estate for partition, the disposition of the Court of Equity has always been to give the improving tenant the benefit thereof as far as consistent with the equity of his co-tenants. 1 Story Eq. Jur., § 655.” To the same effect was the decision of this court in the case of Lewis v. Price, 3 Rich. Eq., 173.
The result of all the cases bearing upon this relief, peculiar to Courts of Equity, is that it is not what such improvements may. have cost in dollars and cents that is allowed, but what additional value has been imparted to the premises by such improvements-Lewis v. Price, supra. The court said: “At the same time, I am content, in this case, that the tenant should have credit, not for the cost of improvements, but for the value they imparted to the premises” (italics ours). The principles announced in the foregoing cases were made to apply, notwithstanding some of the co-tenants were infants. We acknowledge these are cases between co-tenants. They are cited by way of illustration of certain principles of equity. Let it be remembered, also, that the improvements, in these cases referred to, were made without the sanction of the court in the first instance. In the case of Buck, Hefflebower & Neer v. Martin, supra, this court said: “We do not regard the rule, that the improving co-tenant is not entitled to compensation, as applying to all the cases where all the co-tenants concur in the improvements. From the peculiar circumstances *529of this case, we must regard it as belonging to that class of cases. It is true that the children were minors at the time improvements were made, and could not consent for themselves, but they were with their mother, and the family needed a home; indeed, it was absolutely necessary. If at the time an application had been made to the court for leave to build a little cottage on the common property as a shelter for the family, can there be a doubt that such application would have been granted by the court acting for the children? Ex parte Palmer, 2 Hill Ch., 218 ; Corbett v. Laurens, 5 Rich. Eq., 316. Then we regard that clone which should have been done. It was not the legal duty of the mother or her husband (stepfather) to support the children with.out the use of their shares.”
Recurring to the^case at bar, here was a destitute family, consisting of mother, stepfather, infant son, not only without money, but homeless. It was not the duty of the mother and stepfather to support the infant son. Buck and others v. Martin, supra; Lewis v. Price, supra. The son was only ten years of age, with no general or testamentary guardian ; but his mother was his guardian by nature. As such, in the absence of one appointed by law, the mother is naturally expected to fill that office, and thousands of boys and girls, bereft by death of a father’s care and protection, rise up and proclaim their mother blessed. By nature and education timid and retiring, when the interests of the fatherless need her protecting care, all obstacles are surmounted, all dangers bravely met. Under these circumstances, the plaintiff builds the modest home for their occupancy, believing the title in .the mother. What before was useless, because untenantable, by the labor and means of plaintiff expended thereon, becomes not only a home fit for their occupancy, but when not so used by them afterwards, it became a source of revenue — $60 per year is its rental value.
Now, because it was not Mrs. Harbin’s land, because the plaintiff made a mistake, because she is not her son’s legal guardian, becauseshe is not a tenant in common with him, because she is not administrator or executor of the estate of his father, because of these things, must this plaintiff lose all compensation for this work? We do not think so. This court in the case of Spencer *530v. Godfrey, Bail. Eq., 468, held that when the mother, who was administratrix of the estate of her deceased husband, applied to the court in an ex parte petition, alleging that it was necessary to borrow money to pay debts and support her children, and that for that purpose a mortgage should be placed upon the land belonging to the estate of the intestate, and the Court of Equity granted such relief, that it did not lie in the power of one of the children afterwards to upset such an act of the court. The Court-of Equity has jurisdiction over the persons and estates of infants. The result of the decisions seems to be, that what the Court of Equity would have done in the first instance upon application therefor, if the same be done without such authority, the court will afterwards, upon the propriety of such course being made manifest, confirm such act. Ryan v. Bull, 3 Strob. Eq., 91; Corbett v. Laurens, 5 Rich. Eq., 516; Ex parte Palmer, supra. That there was a mistake in the character of the person who made the contract will make no difference. It is substance, not form, which the Court of Equity regards. Cater v. Eveleigh, 4 DeSaus. Eq., 19; James v. Mayrant, Ibid., 591.
But while so holding, we must be clearly understood to decide that not the cost of such improvements, but the value they impart to the premises, is the true rule. The property should be rented by the master of Greenville County, and after the payment of the master’s fees and all taxes, the residue of such rent should be paid over to the plaintiff until he shall receive his debt of if149.54; and when the plaintiff shall have been so satisfied, the property should be rented for the benefit of its owner, Michael J. Roberts, until he obtains a guardian to manage the same, or reaches the age of twenty-one years. We feel constrained, however, in this instance, to instruct that there shall be no costs taxed against the infant defendant.
It is the judgment of this court, that the judgment of the Circuit Court be reversed, and the cause remanded to the Circuit Court, with directions that the principles of this decree be duly enforced in that court.