Summary
In Brunt v. McLaurin, 178 Miss. 86, 172 So. 309, it was held that one who improved a property in the honest belief that he owned it was not barred from reimbursement out of the proceeds of a partition sale because there was a duly recorded deed indicating the existence of the claim of another to an undivided interest in the property.
Summary of this case from Indra v. WigginsOpinion
No. 32546.
February 8, 1937. Suggestion of Error Overruled March 8, 1937.
1. INSURANCE.
True owners of part interest in land held not entitled to share in proceeds of fire policy on house on such land, where neither insured nor insurer had actual knowledge of such true owners' interest.
2. COVENANTS.
Warranty deed held to convey grantor's claim for breach of covenant of title against previous owner, so as to entitle grantee to recover thereon from such previous owner.
3. COVENANTS.
Measure of damages for total failure of title to land on covenant of warranty is value of land at time of execution of the deed as shown by consideration money, with interest and costs.
4. COVENANTS.
Consideration money paid is evidence of value of land at time of deed in action on covenant for failure of title.
5. COVENANTS.
Obligation of covenantor of title being same to the assignee that it was to covenantee, measure of damages will be same, irrespective of price paid by assignee.
6. COVENANTS.
Equity will grant relief to true owners in cases of failure of title, even though there be no actual eviction.
7. PARTITION.
Purchaser held entitled under statute to value of house built during his possession of land in good faith and belief that he had full title, as against heirs of wife of his remote grantor who owned a half interest, irrespective of his constructive notice of their rights by recorded deed in the chain of title (Code 1930, secs. 1474, 2146).
8. IMPROVEMENTS.
To deprive occupant of land under color of title of compensation for permanent improvements erected thereon, there must be brought home to him either knowledge of outstanding paramount title or some circumstance from which he would have cause to suspect the invalidity of his title, not merely that such invalidity could be demonstrated by county records.
9. IMPROVEMENTS.
"Good faith" of a purchaser of land, as used in statute allowing compensation for improvements made by such purchaser, is not used in the technical sense applied to conveyances, but means only that purchase money was genuinely paid without any knowledge or suspicion of fraud, either by purchaser or vendor (Code 1930, sec. 1474).
APPEAL from chancery court of Covington county. HON. BEN STEVENS, Chancellor.
W.U. Corley, of Collins, for appellant.
In order for a covenantee to recover on a covenant of title he must have yielded possession to one holding a paramount title and the burden of proof was on appellee to show both his dispossession and a paramount title in his adversary.
Staton v. Henry, 94 So. 237.
In the case of Burroughs v. Murphy, 131 Miss. 526, 95 So. 515, the court held that where the vendee is still in possession under title conveyed by the vendor, the measure of damages for a breach of warranty is the amount which the vendee has been or will be forced to expend to protect his possession and perfect his title and then this follows: "not in excess of the amount of the purchase price and interest."
The court below could not ascertain what this expense would be even though tenants in common were not involved and he has restricted that this should not exceed the consideration paid. Remembering that the consideration paid was the value of the small house; the amount sued for was $500.00, and that the Chancellor granted a decree for $656.25, thereby violating the rule as to amount both on prayer and on facts, and in face of the fact that appellee held exclusive possession and had yielded nothing.
Allen v. Miller, 99 Miss. 75; Coopwood v. McCandless, 99 Miss. 364.
In addition to making proof as above outlined he must also prove that the title is such as would support an action of ejectment. He not only failed in this but did not even attempt it and could not if he would.
Staton v. Henry, 94 So. 239; Wade v. Barlow, 54 So. 662.
The court below seems to have fallen on the idea that the damages to be awarded the final grantee as against the warrantor is the amount of the purchase price. We do not so understand the decisions of our court. We take it that the purchase price is the maximum amount of damages recoverable, in other words, what it takes to perfect the title, and it would certainly be preposterous and ridiculous in the case at bar to award damages for $656.25 in this case just because one witness said "We kinder valued it at $1700," when as a matter of fact the only money that passed was $195.00, appellant paid on the debts of his grantee to save his little home and we restate that all McQueen paid out as contemplated as a basis for damages was the small dwelling house on which he owed $195.00, and if McLaurin has any cause of action at all it could not exceed the proven value of the smaller place less the sum of $195.00.
Brooks v. Black, 8 So. 332.
It certainly will not be argued, or decided by this, or any other court, that McLaurin shall recover, or receive all the original vendor received, and at the same time keep the five-eighths interest he did get title to. He must either give up his five-eighths interest in the land in controversy, or give credit thereon for what the original vendor received for that interest.
According to the decree of the court below, the appellee McLaurin received a five-eighths interest in the property in controversy, and at the same time, and in same decree gets a personal judgment against the remote vendor for three-eighths interest, based on an estimate in a land trade, and not on what Brunt the original vendor received at all.
An action for breach of covenant warranty of land is not maintainable until after the covenantee, or his assignee has been actually evicted, etc.
Burrus v. Wilkinson, 31 Miss. 537.
To sustain such an action, there must be either an actual eviction by judicial process, or a surrender of possession to a valid subsisting paramount legal title, etc.
Dyer v. Britton, 53 Miss. 270; Dennie v. Heath, 11 S. M. 206, 218; Whitty v. Hightower, 12 S. M. 478; Burrus v. Wilkinson, 31 Miss. 537.
It is an undisputed fact, that at the time McLaurin purchased this naked lot, the deed to the mother of these original complainants was on record and had been for seventeen years. Can he claim good faith with this deed on record? If so, then section 2147, Code of 1930, had just as well be eliminated from it, and let every man purchase unoccupied property, and say, I thought the title was all right, or I did not know some one else claimed it. This contention is answered in Peeple v. Boykin, 96 So. 177, where one tenant in common just as in this case executed a deed, and the court said: "It is well settled in this state, that one tenant in common cannot acquire title by adverse possession against his cotenants until they have actual notice of the adverse claim, or knowledge of such facts, as are tantamount thereof. But when one tenant in common places a deed on the deed of records of the county where the land lies showing title on its face to himself in fee, such deed is notice to the world of the claims shown by its recitals, and if after such record possession is held adversely and uninterruptedly for more than the statutory period it will vest full title in the person in possession against his cotenant."
Gaines v. Kennedy, 53 Miss. 103; Walker v. Williams, 84 Miss. 392.
No person has a right to shut his eyes or ears to avoid information, and then say he had no notice; it will not suffice the law to remain wilfully ignorant of a thing readily ascertainable by whatever party puts him on inquiry, when the means of knowledge is at hand.
McQuiddy v. Ware, 22 L.Ed. 311; Woodruff v. Williams, 35 Col. 28; Vann v. Marburry, 100 Ala. 438; Webb v. Handcock, 162 Ind. 616.
The rule supported by the best authorities is that the record is constructive notice to all subsequent purchasers not only of its own existence and contents, but of such other facts as those concerned with it would have learned from the record if it had been examined, and inquiry suggested by it duly prosecuted would have disclosed.
Noble v. Henry, 190 Ala. 540; Wetzler v. Nichols, 53 Wn. 285; Gains v. Saunders, 50 Ark. 322; Chaffin v. King, 56 Fla. 767; Gulf Coast Canning Co. v. Foster, 17 So. 683; Martin v. Neblett, 86 Tenn. 383.
If, in the investigation of a title, a purchaser with common prudence must have been apprised of another's right, notice of that right is presumed as a matter of implied actual notice.
Reeder v. Barr, 22 Am. Dec. 762; Singer v. Scheible, 10 N.E. 616; Am. Inv. Co. v. Brewer, 181 P. 294; Cambridge v. Delane, 48 N.Y. 326; Blake v. Blake, 102 N.E. 1107.
Means of knowledge with the duty of using them are in equity equivalent to knowledge itself.
Cordova v. Hood, 21 L.Ed. 587; Taylor v. Am. Nat. Bank, 63 Fla. 631; Hunter v. St. Bank, Fla., 65 Fla. 202; McRae v. McMinn, 17 Fla. 876; Figh v. Taber, 203 Ala. 253; Loomis v. Cobb, 159 S.W. 305.
Judge Brannon in the case of Ward v. Ward, 40 W. Va. 611, 52 Am. St. Rep. 911, among other things, said: "I think it can be safely laid down with the exception stated, no joint tenant, tenant in common or parcernor can compel his cotenant to make improvements, or maintain an action against him, personally, to compel him to contribute to the expense of improvements made upon the estate, without his consent, expressed or implied, or fix it as a lien on his interest in the estate. One cannot improve his fellow out of his estate. He has voluntarily put improvements upon the land of another knowing his rights and he cannot impose a debt on him, or his estate without his consent. Freeman on Cotenancy, secs. 261, 262."
Aldrich v. Husband, 131 Mass. 480; Husband v. Aldrich, 135 Mass. 317; Nelson v. Clay, 23 Am. Dec. 387; Hancock v. Day, 36 Am. Dec. 293; Scott v. Gernsey, 48 N.Y. 106; Calvert v. Aldrich, 96 Am. Dec. 693; Munford v. Brown, 16 Am. Dec. 440; Shepherd v. Jernigan, 51 Ark. 275; Carvery v. Fennimore, 116 Ind. 236; Hannah v. Carver, 121 Ind. 278; Johnson v. Pelot, 24 S.C. 254.
Such improvements made without consent, or agreement cannot be recovered for, for the reason that it will place a burden on the party, that he consents not to, and may have the effect of working him out entirely.
Drennan v. Walker, 21 Ark. 539; Bazemore v. Davis, 55 Ga. 504; Alleman v. Holly, 117 Ind. 532; Austin v. Barrett, 44 Iowa, 488; Graham v. Graham, 17 Am. Dec. 166; Hamilton v. Conine, 28 Md. 635; Ranstead v. Ranstead, 74 Md. 384; Pierce v. Pierce, 89 Mich. 233; Walter v. Greenwood, 29 Minn. 87; Welland v. Williams, 21 Nev. 230; Stenens v. Thompson, 17 N.H. 103; Crest v. Jack, 27 Am. Dec. 353; More v. Thorpe, 16 R.I. 655; Thurston v. Dickenson, 46 Am. Dec. 506; More v. Williamson, 73 Am. Dec. 93; Neil v. Shackelford, 45 Tex. 119; Kidder v. Ricksford, 42 Am. Dec. 504; Redfield v. Gelleson, 61 Vt. 220; 38 Cyc. 57; Greeg v. Patterson, 9 Watts S. 197.
Where repairs are made for the sole benefit of the one making them, believing that he is the sole owner, he is not entitled to contribution.
20 N.E. 441; 38 Cyc. 53.
McIntosh McIntosh, of Collins, for appellee and cross-appellant.
McQueen paid W.J. Brunt $1750 for this property and received a warranty deed therefor, and upon this covenant of warranty, McQueen was entitled to recover from W.J. Brunt the three-eighths interest lost by him, because of the failure of the three-eighths of the title, but O.B. McQueen transferred and assigned his right of action against W.J. Brunt by warranty deed, whereby W.I. McLaurin has the same right of recovery against Brunt as had McQueen, under the authority of the case of Brooks v. Black, 8 So. 332, 68 Miss. 161, 24 Am. St. Rep. 259.
The measure of damages recoverable by an evicted vendee upon a covenant of warranty of a remote vendor is not limited to the price paid by such vendee to his immediate vendor, but is the value of the land at the time of its conveyance by such remote vendor, which value is conclusively determined by the price paid to him for it, together with interest on such price for so long a time as such evicted vendee has been held liable to the owner for mesne profits and taxed costs expended by him in defending the suit in ejectment. But he cannot recover his attorney's fees, nor costs not taxed.
24 Am. St. Rep. 259.
Generally speaking, where one of several cotenants makes improvement on the common property without the consent of the others, neither the property nor his cotenants are chargeable as a matter of right with their value, or the expenses incurred in making them. To this general rule there are well established exceptions, as, for example, where improvements are made by a tenant in common, who has reasons to believe, and does honestly believe, that he has fee-simple title in severalty to the land so improved; or where the improvements have been erected under circumstances which would make it a great and obvious hardship upon the improving tenant to deprive him entirely of their benefit.
7 R.C.L. 837, par. 33; Paddock v. Shields, 57 Miss. 340; Bennett v. Bennett, 84 Miss. 493; 68 A.L.R. 290, 291; Cole v. Johnson, 53 Miss. 94; Gaines v. Kennedy, 53 Miss. 103.
The lower court in its finding of facts is correct, as revealed by the record.
The lower court in adjudicating McLaurin's right of recovery against W.J. Brunt on his covenant of warranty, was correct, and in accord with the rule laid down in the case of Brooks v. Black, 8 So. 332, and the case should be affirmed on the direct appeal.
The court having found, as a matter of fact, as is revealed by the record, that W.I. McLaurin, cross-appellant, in good faith and without any actual knowledge, built a house on the property of the value of $1200, at a time when he believed he was the owner in fee simple, not knowing or having anything to put him on notice of appellant's claim of interest in the land, that as a matter of law and equity, the court's finding, as a matter of law, that the appellants are entitled to participate in the benefits and increased value of the property, because of these improvements is erroneous and that the case should be reversed on the cross-appeal, denying appellants any benefit or interest in said improvements.
We most respectfully submit that although the appellee has not of this date evicted, that this is simply a technical objection; that appellants have instituted suit and established a superior title; that equity had jurisdiction of all the necessary parties and also the subject matter in question, that is, the breached warranty the covenantor and covenantee; and to preclude appellee from recovery thereon would result in a multiplicity of suits against appellants in order that his rights arising out of the same transaction sued upon should be determined.
21 C.J. 198, sec. 187.
McQueen was a party to the suit up until a time when the lower court decided to render its opinion, and the only reason McQueen's rights were not adjudicated was because appellants dismissed their bill as to him, and they cannot now be heard to complain that a necessary party's rights were not adjudicated.
18 C.J. 1148, sec. 5; Harris v. Duckworth, 69 So. 219; Montgomery v. Sinking Fund Comrs., 8 Miss. 13; Nevitt v. Natchez Steam Packet Co., 5 Miss. 196.
The only error we wish to complain of is that part of the lower court's decree adjudicating that appellants have an undivided three-eighths interest in appellant's new house. It is undisputed that McLaurin erected a new house on the lot he purchased from McQueen for a valuable consideration and in good faith, the old Brunt dwelling having been destroyed by fire, believing that he was vested with fee simple title to the lot, as is shown by the record wherein no one denied this, and by the chancellor's finding of facts. As a matter of fact, appellant's brief admits that McLaurin was a bona fide purchaser for a good consideration and without notice of any adverse claim.
Section 1475, Code of 1930; Pritchett v. Stevens, 88 So. 627.
It would be a strange state of affairs if equity should refuse a defendant, who had purchased property and made improvement in good faith, equal recourse as afforded under ejectment at law. In such a case it would be to defendant's interest to move that the court of equity transfer his case to the circuit court, because equity does not afford adequate relief.
31 C.J. 319, sec. 27.
The question under consideration requiring additional briefs, as we understand the issue, is simply as follows: If a purchaser for value with the honest but mistaken belief that he is vested with fee simple title, improves property, will minor cotenants be allowed to participate in the proceeds of the improvements so made, by virtue of construction notice only?
The Supreme Court of this state answered this question in the affirmative in the case of Learned v. Corley, 43 Miss. 687, at the October Term, 1870, and this was the law of the land up until the October, 1876, term, of the court when the Learned case, supra, was expressly overruled by Cole v. Jackson, 53 Miss. 94, whereupon the following rule was prescribed: "The exact question under discussion is decided in accordance with the views here announced in the cases of Dothage v. Stuart, 35 Mo. 251; Morrison v. Robinson, 31 Penn. St. 456; Whitney v. Richardson, 31 Vt. 300; though the language of the statutes involved was not altogether like our own. Our view is, that, in order to deprive the occupant of land under color of title of the value of the permanent improvements erected thereon, outstanding paramount title, or some circumstance from which the court or jury may fairly infer that he had cause to suspect the invalidity of his own title, but that this cannot be inferred merely because it could have been demonstrated by the records of the county."
The foregoing decision, so far as we are able to ascertain, after a diligent review of the authorities in this state, has been strictly adhered to in Mississippi in every case coming before the Supreme Court.
Reed v. Henson, 130 So. 108, 158 Miss. 224.
It will be noted that all of the authorities referred to in the court's request for additional briefs expressly hold that constructive notice is not, of itself, sufficient to impute bad faith.
Cole v. Johnson, 53 Miss. 94; Gaines v. Kennedy, 53 Miss. 103; Walker v. Williams, 84 Miss. 392; Bennett v. Bennett, 84 Miss. 493; Butler v. Furr, 168 Miss. 884; 47 C.J., page 469, sec. 497, page 470, sec. 499.
It is our humble opinion that appellant has failed to cite one Mississippi decision that holds improvements made by a co-tenant in the honest but mistaken belief that he is vested with fee simple title should be sold for the benefit of all tenants in common, because constructive notice is sufficient to charge the improving tenant with bad faith.
1 A.L.R. 1202.
It is, therefore, respectfully urged that constructive notice alone is insufficient to impute bad faith, in the erection of improvements, and since no facts or circumstances appear in the record that would arouse the suspicion of a prudent person, consequently, McLaurin should be allowed to recover all the benefits thereof to the exclusion of the heirs of Mrs. Hattie Brunt, deceased.
Mrs. Vera Thurman, Mrs. Ena Stewart, a minor by next friend, and Wallace Brunt, exhibited their bill of complaint against W.I. McLaurin, O.B. McQueen, W.J. and Tressie Brunt, and the AEtna Insurance Company, to recover an undivided interest in land situated in the town of Collins, basing their title thereto on the fact that they are the heirs at law of their deceased mother, in whom was vested a one-half interest in this land. Hattie E. Brunt, the mother of these complainants, died in 1918, and these three children, with their father, W.J. Brunt, inherited the interest of said Hattie E. Brunt in this land. The bill further alleges that, after the death of the complainants' mother, their father, in conjunction with his second wife, Tressie Brunt, executed a deed of trust on said land to the Jackson Building Loan Association, and subsequently thereafter, in 1929, conveyed the land, by warranty deed, to O.B. McQueen. They alleged that, while McQueen was in possession of the land under the deed from their father and stepmother, the house situated on the land was destroyed by fire; that an insurance policy had been taken out by McQueen with the AEtna Insurance Company for $1,100, and this insurance was wrongfully paid to McQueen; and that said insurance should inure to the benefit of these complaining tenants in common. The bill prayed for partition, since the land could not be divided in kind.
McLaurin filed his answer, admitting that the minors each owned a one-eighth interest in the lot, and the state of the title. By way of cross-bill, however, he sought to recover from the remote vendors, W.J. and Tressie Brunt, the consideration paid by McQueen for the lot.
In the court below, the bill was dismissed as to the AEtna Insurance Company and O.B. McQueen, without objection by McLaurin, although he had made McQueen a party to his cross-bill. The court below filed a written finding of facts, and thereon a decree was entered adjudging that McLaurin and the three children were tenants in common of the lot, McLaurin owning five-eighths, and each of the children owning a one-eighth interest therein, and ordered a sale of the lot for partition, appointing a commissioner for that purpose. The court further found, on the cross-bill, that McLaurin should recover from the remote vendors, W.J. and Tressie Brunt, three-eighths of $1,750, the consideration paid by McQueen for the lot or $656.25, with lawful interest thereon from the date of the deed to McQueen, and impressed a lien on the house and lot which McQueen had conveyed to W.J. Brunt as part of the consideration for the lot in controversy, and directed a sale of this house and lot, by the commissioner, to discharge that lien.
The record facts disclosed are that, in 1916, one Kervin conveyed the lot in controversy to W.J. and Hattie E. Brunt, his wife. In 1928 W.J. Brunt, and his second wife, Tressie, gave a deed of trust to the building and loan association for an excess of $1,100, and some years later they conveyed, by warranty deed, to O.B. McQueen the lot in controversy, the consideration being the assumption by McQueen of the $1,100 deed of trust in favor of the building and loan association, and the conveyance to the Brunts by McQueen of a house and lot owned by him. Mrs. Hattie E. Brunt, the mother of the children, as stated, died in 1918, leaving as heirs her husband, W.J. Brunt, and the three minor children, and the title to a one-half interest in the lot in controversy was vested in the husband and children in equal shares. The Brunt children never did join in any deed. In 1928 W.J. and Tressie Brunt, his second wife, gave the deed of trust noted above, and thereafter, when this became due, they made the exchange above referred to. As stated, while McQueen was in possession of the lot, the house was destroyed by fire. McQueen had made payments of $20 a month for three years to the building and loan association when he collected the insurance, and with it he paid the balance due thereon; did not rebuild the house; and later conveyed the lot, without improvements, to W.I. McLaurin.
There was evidence tending to show that McQueen paid for this house and lot $1,750; to the building and loan association $1,100 to discharge the deed of trust thereon; and that $850 was a fair value of the house and lot which he had conveyed to the Brunts. The Brunts had assumed to pay, and did pay, a lien of $195 which existed on the house and lot conveyed to them by McQueen as a part of the consideration for the lot in controversy.
The chancellor allowed three-eighths of $1,750 as damages to McLaurin for a breach of warranty in the deed from the Brunts to McQueen, and found, and there is no dispute concerning same in the record, that McQueen and McLaurin were purchasers, in good faith, without any actual knowledge, other than the records of Covington county, and believing honestly that they were the absolute owners of the title.
1. We do not think we are warranted in disturbing the finding of facts of the court below. Counsel for W.J. Brunt complains of the finding, but it is based on the only convincing evidence in the record. Of course, neither Brunt nor his children were entitled to share in the proceeds of the insurance policy taken out and paid for by McQueen, when neither he nor the insurance company knew that the children of Brunt had any claim to the land. As a matter of fact, they relied upon an abstract written by an abstractor who failed to distinguish the difference between the names "Hattie" and "Tressie," the two wives of W.J. Brunt.
However, in his cross-bill, McLaurin fixed his damages at $500, and his counsel agrees that the judgment against Brunt be reduced from $556.25 to $500, with 6 per cent. interest as allowed by the court below. This modification of the decree of the court below on the cross-bill will be made.
The appellant W.J. Brunt urges that it is unjust and unlawful to allow McLaurin to recover for a breach of covenant in Brunt's deed to McQueen. When McQueen executed a warranty deed to McLaurin, he thereby assigned his (McQueen's) claim to McLaurin for a breach of the covenants on the part of Brunt. The court found that McQueen paid Brunt $1,750, and that to the extent of a three-eighths interest in the land the title had failed.
The rule controlling here is announced in the case of Brooks v. Black, 68 Miss. 161, 8 So. 332, 335, 11 L.R.A. 176, 24 Am. St. Rep. 259, as follows: "The measure of damages on a total failure of title, even on the covenant of warranty, is the value of the land at the execution of the deed; and the evidence of that value is the consideration money, with interest and costs." The court there definitely determined the question of remote vendees by saying: "When we come however to the precise question now presented, which is whether a remote vendee may recover from the remote vendor the purchase money paid by the first vendee, or is limited to the amount paid by himself to his vendee, we find direct conflict in the decisions, and, so far as we have found the cases, they are nearly equal in number on each side." The court thus answered this query: "We are unable to perceive any principle upon which this obligation shall be diminished because of the price, in consideration of which it may be assigned. We therefore conclude that the obligation of the covenantor is the same to the assignee that it was to the covenantee, and, being such, is governed by the same measure of damages."
2. There is no merit in the contention that after the court had determined, and all the parties had agreed, that this title had failed, that Equity could not grant relief because there had been no actual eviction. This question is at rest in this state. Equity has jurisdiction in cases of this kind. The court adjudged that the title of Brunt's children was superior, and that there had been a breach of the covenant. Middleton v. Howell, 127 Miss. 880, 90 So. 725; Cranford v. State ex rel. Knox, Atty. Gen., 159 Miss. 32, 131 So. 638; and 21 C.J. 198, section 187.
3. All the parties hereto consented, in open court, that the case might be dismissed against McQueen, and none of them objected to that action.
On the cross-bill, we are of the opinion that the court below erred in directing a sale of the house erected by McLaurin on the lot in controversy, and in permitting the Brunt children to share a one-eighth interest in the house.
McLaurin, while in exclusive possession of the property in question, honestly believed himself to be the owner of the absolute fee, and, in good faith, erected a house thereon. There is nothing in this record to suggest that any of the parties hereto suspected, or had reason to suspect, that there was a defect in the title, and absolute good faith is shown unless McQueen and McLaurin are not permitted to assert good faith because of our recordation statute, section 2146, Code 1930.
Hattie E. Brunt's deed was duly recorded prior to the attempted conveyance of her interest by W.J. and Tressie Brunt. Under the statute, supra, that recorded deed was constructive notice of Hattie E. Brunt's title to a one-half interest in the lot. If this constructive notice suffices to impeach good faith, then section 1474, Code 1930, is practically without enforceable effect. This section allows a defendant to claim valuable improvements with this qualifying statement, "but a defendant shall not be entitled to such compensation for improvements or taxes unless he claim the premises under some deed or contract of purchase acquired or made in good faith."
Cole v. Johnson, 53 Miss. 94, settled that question by holding that, under the circumstances here, a party who purchases property and puts valuable improvements thereon, believing himself to be the owner, and thereafter his title fails, may have set aside to him the class of improvements so made to the extent that the same enhanced the value of the whole property. The court there said: "Our view is, that, in order to deprive the occupant of land under color of title of the value of the permanent improvements erected thereon, there must be brought home to him either knowledge of an outstanding paramount title, or some circumstance from which the court or jury may fairly infer that he had cause to suspect the invalidity of his own title, but that this cannot be inferred merely because it could have been demonstrated by the records of the county. . . . So far as the payment of the money is concerned, it seems quite manifest that all that is meant by the requirement of good faith is, that it shall have been genuinely paid, without any knowledge or suspicion of fraud either on the part of the purchaser or of the administrator. The term is used in contradistinction to bad faith, and not in the technical sense in which it is applied to conveyances of title, in which latter sense a party wholly free from moral mala fides is still frequently held not to be a bona fide purchaser." See, also, Emrich v. Ireland, 55 Miss. 390; Citizens' Bank v. Costanera, 62 Miss. 825; Demourelle v. Piazza, 77 Miss. 433, 27 So. 623; Gaines v. Kennedy, 53 Miss. 103; Walker v. Williams, 84 Miss. 392, 36 So. 450; Bennett v. Bennett, 84 Miss. 493, 36 So. 452; Butler v. Furr, 168 Miss. 884, 152 So. 277; and especially Reed v. Henson, 158 Miss. 224, 130 So. 108.
The general rule is stated in 1 A.L.R., pp. 1202 and 1203, Editor's note.
The court below, in the case at bar, should find and allot to McLaurin the value of the improvements in such amount as the entire lot is enhanced by the erection of the house thereon as of the date of the decree.
The decree is affirmed with the modification, or remittitur, on the direct appeal, and reversed and remanded as to McLaurin's appeal..
Affirmed in part and reversed and remanded on McLaurin's appeal.