Woods, C. J.,
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 [477]*477compliance with the decree ordering it, and was never reported to or confirmed by the court. It was, therefore, void, and conveyed no title. With the fatal infirmity inhering in the conveyance taken by them, it cannot be pretended the purchasers were ignorant; and of the rottenness of this first link in the chain of title of the defendants, they are chargeable with notice. This deed from the guardian to the purchasers at the said sale, with the record of the proceedings of the court ordering it, and with the absence from that record of any report of sale by the guardian, and confirmation of it, would have shown, upon the most cursory examination, that the sale was void. The deeds of the guardian alone did not and could not confer title, but the decree of confirmation of the sale by the court was necessary. These deeds themselves, on their face, showed that something further than their recitals was necessary to be sought by an intending purchaser, and that this something else would be found in the decrees of the proper court, and the failure to seek this further information in the proceedings of the court, was such negligence as is inconsistent with a claim of title by a purchaser in good faith without notice. Without dwelling upon this point, we are of opinion that the court below very properly decreed Frances Hicks to be the owner of the land.
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 [478]*478case was largely upon the purpose and effect of registry laws, and the curious result seems to have been reached of imputing mala fides to one whose claim for improvements was derived from a sale never confirmed, though the claim was honestly made and the improvements created in ignorance of the invalidity of his title. We agree with the able counsel for appellants, that the decision of Learned v. Corley practically denies the sufficiency of actual good faith and honest ignorance of defects to support a claim for improvements where the claimant’s title papers disclosed the invalidity of his title itself to the land. But the learned counsel frankly concedes that in Cole v. Johnson, 53 Miss., 94, the case of Learned v. Corley is expressly overruled. The concession, however, is thought by appellant’s counsel to be harmless, because of the supposed mistake of fact said to be apparent in Cole v. Johnson. It is said by counsel that Cole v. Johnson rests, in part, upon the mistaken assumption that there had really been a confirmation of the sale in the case of Learned v. Corley. Repeated examinations of that case satisfy us that the very able judge who delivered the opinion in Cole v. Johnson was not misled by any misapprehension of fact. Said Chalmers, J., in that case: “The doctrine thus enunciated (in Learned v. Corley) was manifestly an obiter dictum. . . . The court had already declared that the claim for improvements could not be maintained, because there was no demand for mesne profits by the plaintiff; and this view was decisive of the case. All that was subsequently said, therefore, is entitled only to such persuasive force as its own intrinsic merits demand; and, after mature reflection, we must announce our dissent from so much of the opinion as holds that the value of permanent improvements is not recoverable, where the defect in the title is discoverable by an examination of the records of the county.”
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 [479]*479dictum, Mr. Justice Chalmers then proceeds briefly, but unmistakably and unanswerably, to overwhelm the erroneous proposition asserted in Learned v. Corley. The opening sentences of his argument disclose the impregnable ground upon which it rested: “The requirement that the party making-improvements ‘ shall claim the premises under some deed or contract of purchase made in good faith, ’ must mean nothing-more than an honest belief on his part that he is the true owner. The expression, ‘ some deed or contract of purchase, ’ of itself negatives the idea that it is the true title which he must have, and plainly indicates that what the law calls ‘ color of title ’■ will be sufficient. Indeed, if he were the purchaser of the true title, there would be no occasion for him to invoke the protection of the statute, since he could never be dispossessed, and hence could never be compelled to make claim for improvements. But does not the rule that he shall be denied them if by an investigation he could have discovered the defect in the title, practically abrogate the statute ? ’ ’ And then follows the opinion, based upon inexpugnable reasoning, which had been supposed, until the oral presentation of the views of appellant’s counsel at bar, to have forever, in this state at least, settled adversely the contention' that an occupant of land under color of title, and in ignorance of any outstanding paramount title, and in the absence of any circumstances showing that he had come to suspect the validity of his title, can be denied compensation for improvements by an imputation of malafides because of a failure to examine the public records of the county.
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.
Free access — add to your briefcase to read the full text and ask questions with AI
Woods, C. J.,
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 [477]*477compliance with the decree ordering it, and was never reported to or confirmed by the court. It was, therefore, void, and conveyed no title. With the fatal infirmity inhering in the conveyance taken by them, it cannot be pretended the purchasers were ignorant; and of the rottenness of this first link in the chain of title of the defendants, they are chargeable with notice. This deed from the guardian to the purchasers at the said sale, with the record of the proceedings of the court ordering it, and with the absence from that record of any report of sale by the guardian, and confirmation of it, would have shown, upon the most cursory examination, that the sale was void. The deeds of the guardian alone did not and could not confer title, but the decree of confirmation of the sale by the court was necessary. These deeds themselves, on their face, showed that something further than their recitals was necessary to be sought by an intending purchaser, and that this something else would be found in the decrees of the proper court, and the failure to seek this further information in the proceedings of the court, was such negligence as is inconsistent with a claim of title by a purchaser in good faith without notice. Without dwelling upon this point, we are of opinion that the court below very properly decreed Frances Hicks to be the owner of the land.
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 [478]*478case was largely upon the purpose and effect of registry laws, and the curious result seems to have been reached of imputing mala fides to one whose claim for improvements was derived from a sale never confirmed, though the claim was honestly made and the improvements created in ignorance of the invalidity of his title. We agree with the able counsel for appellants, that the decision of Learned v. Corley practically denies the sufficiency of actual good faith and honest ignorance of defects to support a claim for improvements where the claimant’s title papers disclosed the invalidity of his title itself to the land. But the learned counsel frankly concedes that in Cole v. Johnson, 53 Miss., 94, the case of Learned v. Corley is expressly overruled. The concession, however, is thought by appellant’s counsel to be harmless, because of the supposed mistake of fact said to be apparent in Cole v. Johnson. It is said by counsel that Cole v. Johnson rests, in part, upon the mistaken assumption that there had really been a confirmation of the sale in the case of Learned v. Corley. Repeated examinations of that case satisfy us that the very able judge who delivered the opinion in Cole v. Johnson was not misled by any misapprehension of fact. Said Chalmers, J., in that case: “The doctrine thus enunciated (in Learned v. Corley) was manifestly an obiter dictum. . . . The court had already declared that the claim for improvements could not be maintained, because there was no demand for mesne profits by the plaintiff; and this view was decisive of the case. All that was subsequently said, therefore, is entitled only to such persuasive force as its own intrinsic merits demand; and, after mature reflection, we must announce our dissent from so much of the opinion as holds that the value of permanent improvements is not recoverable, where the defect in the title is discoverable by an examination of the records of the county.”
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 [479]*479dictum, Mr. Justice Chalmers then proceeds briefly, but unmistakably and unanswerably, to overwhelm the erroneous proposition asserted in Learned v. Corley. The opening sentences of his argument disclose the impregnable ground upon which it rested: “The requirement that the party making-improvements ‘ shall claim the premises under some deed or contract of purchase made in good faith, ’ must mean nothing-more than an honest belief on his part that he is the true owner. The expression, ‘ some deed or contract of purchase, ’ of itself negatives the idea that it is the true title which he must have, and plainly indicates that what the law calls ‘ color of title ’■ will be sufficient. Indeed, if he were the purchaser of the true title, there would be no occasion for him to invoke the protection of the statute, since he could never be dispossessed, and hence could never be compelled to make claim for improvements. But does not the rule that he shall be denied them if by an investigation he could have discovered the defect in the title, practically abrogate the statute ? ’ ’ And then follows the opinion, based upon inexpugnable reasoning, which had been supposed, until the oral presentation of the views of appellant’s counsel at bar, to have forever, in this state at least, settled adversely the contention' that an occupant of land under color of title, and in ignorance of any outstanding paramount title, and in the absence of any circumstances showing that he had come to suspect the validity of his title, can be denied compensation for improvements by an imputation of malafides because of a failure to examine the public records of the county.
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 [480]*480v. Matheny: “In Cole v. Johnson, 53 Miss., the expression, ‘good faith,’ employed by our statute on the subject of the right of the defendant in ejectment to claim for improvements, was held not to exclude the claim of one who had, purchased land at a sale under a decree of the probate court, and paid for it and improved it, believing his title to be perfect. In Pass v. McLendon, 62 Miss., one who had purchased land from a tenant for life, who held under a will of record in the county in which the land lay, in ignorance of the fact that his vendor did not have the fee, and believing that he acquired the fee, was not entitled to pay for improvements made by him during the existence of the life estate. We adhere to both cases. One might well be excused from the requirement of forming a correct opinion as to the validity of a sale of land under the decree of the probate court, under the view taken of that court by the appellate court, and was not chargeable with bad faith or. gross negligence (its equivalent) for believing, until informed to the contrary, that a sale made by a decree of the court intrusted with jurisdiction over the subject and parties, was regular and conferred title.
“ 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[481]*481cover the cost of the improvements, instead of the amount of the enhancement in value of the lands by reason of the improvements. This assignment is well taken, and the question raised by it is not one of first impression with us. See Nixon v. Porter, 38 Miss., near bottom of page 416, where it is said that the defendant is to be allowed for the value his improvements have added to the land. See Wilie et al. v. Brooks, 45 Miss., p. 551, where it is declared that the complainant is entitled only to the value of the property as enhanced by the additions and ameliorations. Payton, C. J., in his opinion in Clark et al. v. Hornthal et al., 47 Miss., 478, approves the rule of measuring the liability for improvements by the increase in the vendible value of the land. And, in Massey v. Womble, 69 Miss., this court declined, on all the facts of that case, to disturb the decree of the court below, based on the report of its commissioner, which allowed the defendants credit for the enhanced vendible value of the land, and for taxes paid, and interest thereon, and charged them with the rental value of the land during their possession, and interest thereon.
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.
[482]*482The case of Johnson v. Futch, 57 Miss., is perfectly reconcilable, on its facts, with the cases already cited. We thoroughly approve the rule laid down in the last named case, viz.: That the value of improvements should be assessed on a basis co-extensive in time with the estimate of rents and profits which they contributed to produce, so as to allow the defendant for all his improvements of which the plaintiff recovers the benefit; but this does not mean that the defendant is to be allowed extravagant expenditures, or even necessarily actual cost for all the improvements he may have seen fit to place on the land, or that he is entitled to the cost of replacing such improvements if they were regarded as not on the land. The defendant is to be allowed for improvements to the amount of the enhanced value of the lands, regard being had to the natural and proper uses for which the land is fitted and to which it is devoted.
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 [483]*483the other. In support of their contention they cited Staton v. Bryant, 55 Miss., 261; Miller v. Ingram, 56 Ib., 510; Tatum v. McClellan, Ib., 352.
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.