The opinion of the court was delivered by
Me. Chief JustiCe Simpson.
The purpose of the action below was to partition certain real estate situate in the city of Columbia, and in possession of the defendant, in which plaintiff claimed a moiety. The plaintiff’s title being disputed, this ques[260]*260tion was submitted to a jury, who found for the plaintiff one-half of the land. Thereupon the Circuit Judge, Hon. W. H. Wallace, after stating certain facts found by himself, ordered a writ in partition, awarding one-half in fee to the plaintiff and the remaining half in fee to the defendant. “At the same time he referred the case to the master to state the account of the defendant, Octavia Pelot, for the receipts of rents and profits of said lot of land for a period commencing six years prior to the commencement of this suit and extending up to the date of his report, together with all improvements thereon.”
The commissioners in charge of the writ made their return in January, 1885, in which they stated that they had divided the land into two equal portions as to area, each fronting on Gervais street, and had allotted to the defendant the western half, and to the plaintiff the eastern. On the western half was a dwelling, or store, which had been erected thereon by the defendant during her possession, and a kitchen which was there when she took possession. The dwelling, or store, they valued at $300, the kitchen at $100. On the eastern half was a store, or work-shop, erected by the defendant; this they valued at $150.
The master made his report, valuing the dwelling at $400, the kitchen at $100, and the work-house, or store, at $200. He also reported upon the rents and profits received by the defendant for six years, amounting to $313 — $183.75 of which was derived from the kitchen, the balance from the other houses, principally the work-shop ; upon which aggregate, after crediting taxes, $166.50, a balance was left of $146.50. The master made no recommendation, but simply reported the facts. He also reported the rental value of these houses. To this report the plaintiff excepted : 1. Because the master did not adopt the valuation fixed by the commissioners in partition, as the true value of the improvements. 2. Because the master did not find that the defendant had occupied the dwelling from December 15, 1877, and did not charge her with the rental value thereof.
The case then came up before his honor, Judge Kershaw, who overruled the exceptions and confirmed the report, and, holding that the case had been referred to the master for no other purpose but to collect the facts in reference to receipt of rents and [261]*261profits by the defendant and the value of the improvements, so that the rights of the parties might be properly adjudicated, proceeded to such adjudication, holding that the defendant was not accountable for either the value of the improvements made by herself or the rents received from such improvements, but that she was accountable for the rent received from the kitchen, such accounting, however, not to extend beyond the time of demand by the plaintiff to be admitted to her share of the common estate; and, adopting the value of the improvements as estimated by the master instead of the commissioners, he held that the defendant was responsible to the plaintiff for half of the kitchen, $50, and that plaintiff was responsible for the whole value of the store or work-shop on her lot, it having been erected thereon by the defendant, to wit, $200; resulting to the defendant from plaintiff $150 out of the improvements, the defendant to account for one-half of the rents received from the kitchen from the commencement of the action, first deducting therefrom one-half taxes paid on said kitchen from same date. He ordered and adjudged, that it be referred to the master to adjust the accounts between the parties according to the principles set forth, and that in all other respects the report of the master under consideration be confirmed and the exceptions thereto be overruled, each party to pay one-half of the costs.
Both parties appealed, the plaintiff alleging: I. That his honor should have held the decree of Judge Wallace as fixing the liability of defendant for rents and profits for a period of six years before the action, and that he should, therefore, have decreed such liability as to the kitchen. II. That he should have held defendant to accountability for the ground rent of that portion of the premises improved by the defendant. III. Because he erred in holding the plaintiff accountable for the value of the store or shop erected by the defendant upon that portion of the lot assigned to the plaintiff. IY. Because the costs had been fixed in the decree of Judge Wallace upon the defendant, and Judge Kershaw should have so held. The defendant’s appeal raises but one question, to wit, that his honor erred in decreeing that the defendant should pay to the plaintiff the half value of the kitchen as ascertained by the master.
[262]*262We think the construction put by Judge Kershaw upon the decree of Judge Wallace, in referring the case to the master, was correct. At the time that Judge Wallace ordered this reference, the case was not ripe for settling the rights of the parties. The facts were not before him; they had not been fully developed, especially as to the very matters involved, and upon which a final decree was tobe made. Judge Wallace did not in his decree lay down any principle to which the report should conform; he simply required the master to ascertain certain facts, to wit, the receipts by the defendant of the rents and profits of the whole lot for six years, together with the improvements. It does not seem to be contended that this decree fixed accountability upon the defendant for the whole lot. Why not, if it fixed accountability as to the kitchen for the six years ? The order of Judge Wallace, in our opinion, was no more than an intermediate order, searching for information, preparatory to a final decree, upon which information Judge Kershaw properly proceeded to adjudicate the rights of the parties, untrammelled.
As already stated, we do not understand that plaintiff contends that the decree of Judge Wallace fixed any liability on the defendant for rents and profits received from improvements erected by her on the lot, but she contends that the accountability of defendant as to the rent of the kitchen was fixed, and this for six years, and she now raises the question that whether this was fixed or not, yet that his honor erred in not requiring the defendant thus to account, and also in not requiring an accounting for the ground rent of so much of the lot upon which the new buildings stood, this much at least being, as alleged, common property, made use of by the defendant. It appears among the findings of fact by the master that the defendant went into possession of the lot in question upon the death of her grandmother, Suckey McGru, “under the belief that she was the sole owner,” and she no doubt so held it until the demand by action was made upon her, erecting improvements thereon without question. Under these circumstances, the law permits her to be exempt from liability for- the rents and profits anterior to a demand by„action. See the case of Woodward v. Clarke, 4 Strob. Eq., 170, and especially our recent case of Scaife v. [263]*263Thomson, 15 S. C., 368; Freeman on Coten., § 258, and Riddlehoover v. Kinard, 1 Hill Ch., 381.
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The opinion of the court was delivered by
Me. Chief JustiCe Simpson.
The purpose of the action below was to partition certain real estate situate in the city of Columbia, and in possession of the defendant, in which plaintiff claimed a moiety. The plaintiff’s title being disputed, this ques[260]*260tion was submitted to a jury, who found for the plaintiff one-half of the land. Thereupon the Circuit Judge, Hon. W. H. Wallace, after stating certain facts found by himself, ordered a writ in partition, awarding one-half in fee to the plaintiff and the remaining half in fee to the defendant. “At the same time he referred the case to the master to state the account of the defendant, Octavia Pelot, for the receipts of rents and profits of said lot of land for a period commencing six years prior to the commencement of this suit and extending up to the date of his report, together with all improvements thereon.”
The commissioners in charge of the writ made their return in January, 1885, in which they stated that they had divided the land into two equal portions as to area, each fronting on Gervais street, and had allotted to the defendant the western half, and to the plaintiff the eastern. On the western half was a dwelling, or store, which had been erected thereon by the defendant during her possession, and a kitchen which was there when she took possession. The dwelling, or store, they valued at $300, the kitchen at $100. On the eastern half was a store, or work-shop, erected by the defendant; this they valued at $150.
The master made his report, valuing the dwelling at $400, the kitchen at $100, and the work-house, or store, at $200. He also reported upon the rents and profits received by the defendant for six years, amounting to $313 — $183.75 of which was derived from the kitchen, the balance from the other houses, principally the work-shop ; upon which aggregate, after crediting taxes, $166.50, a balance was left of $146.50. The master made no recommendation, but simply reported the facts. He also reported the rental value of these houses. To this report the plaintiff excepted : 1. Because the master did not adopt the valuation fixed by the commissioners in partition, as the true value of the improvements. 2. Because the master did not find that the defendant had occupied the dwelling from December 15, 1877, and did not charge her with the rental value thereof.
The case then came up before his honor, Judge Kershaw, who overruled the exceptions and confirmed the report, and, holding that the case had been referred to the master for no other purpose but to collect the facts in reference to receipt of rents and [261]*261profits by the defendant and the value of the improvements, so that the rights of the parties might be properly adjudicated, proceeded to such adjudication, holding that the defendant was not accountable for either the value of the improvements made by herself or the rents received from such improvements, but that she was accountable for the rent received from the kitchen, such accounting, however, not to extend beyond the time of demand by the plaintiff to be admitted to her share of the common estate; and, adopting the value of the improvements as estimated by the master instead of the commissioners, he held that the defendant was responsible to the plaintiff for half of the kitchen, $50, and that plaintiff was responsible for the whole value of the store or work-shop on her lot, it having been erected thereon by the defendant, to wit, $200; resulting to the defendant from plaintiff $150 out of the improvements, the defendant to account for one-half of the rents received from the kitchen from the commencement of the action, first deducting therefrom one-half taxes paid on said kitchen from same date. He ordered and adjudged, that it be referred to the master to adjust the accounts between the parties according to the principles set forth, and that in all other respects the report of the master under consideration be confirmed and the exceptions thereto be overruled, each party to pay one-half of the costs.
Both parties appealed, the plaintiff alleging: I. That his honor should have held the decree of Judge Wallace as fixing the liability of defendant for rents and profits for a period of six years before the action, and that he should, therefore, have decreed such liability as to the kitchen. II. That he should have held defendant to accountability for the ground rent of that portion of the premises improved by the defendant. III. Because he erred in holding the plaintiff accountable for the value of the store or shop erected by the defendant upon that portion of the lot assigned to the plaintiff. IY. Because the costs had been fixed in the decree of Judge Wallace upon the defendant, and Judge Kershaw should have so held. The defendant’s appeal raises but one question, to wit, that his honor erred in decreeing that the defendant should pay to the plaintiff the half value of the kitchen as ascertained by the master.
[262]*262We think the construction put by Judge Kershaw upon the decree of Judge Wallace, in referring the case to the master, was correct. At the time that Judge Wallace ordered this reference, the case was not ripe for settling the rights of the parties. The facts were not before him; they had not been fully developed, especially as to the very matters involved, and upon which a final decree was tobe made. Judge Wallace did not in his decree lay down any principle to which the report should conform; he simply required the master to ascertain certain facts, to wit, the receipts by the defendant of the rents and profits of the whole lot for six years, together with the improvements. It does not seem to be contended that this decree fixed accountability upon the defendant for the whole lot. Why not, if it fixed accountability as to the kitchen for the six years ? The order of Judge Wallace, in our opinion, was no more than an intermediate order, searching for information, preparatory to a final decree, upon which information Judge Kershaw properly proceeded to adjudicate the rights of the parties, untrammelled.
As already stated, we do not understand that plaintiff contends that the decree of Judge Wallace fixed any liability on the defendant for rents and profits received from improvements erected by her on the lot, but she contends that the accountability of defendant as to the rent of the kitchen was fixed, and this for six years, and she now raises the question that whether this was fixed or not, yet that his honor erred in not requiring the defendant thus to account, and also in not requiring an accounting for the ground rent of so much of the lot upon which the new buildings stood, this much at least being, as alleged, common property, made use of by the defendant. It appears among the findings of fact by the master that the defendant went into possession of the lot in question upon the death of her grandmother, Suckey McGru, “under the belief that she was the sole owner,” and she no doubt so held it until the demand by action was made upon her, erecting improvements thereon without question. Under these circumstances, the law permits her to be exempt from liability for- the rents and profits anterior to a demand by„action. See the case of Woodward v. Clarke, 4 Strob. Eq., 170, and especially our recent case of Scaife v. [263]*263Thomson, 15 S. C., 368; Freeman on Coten., § 258, and Riddlehoover v. Kinard, 1 Hill Ch., 381. We do not find that his honor, the Circuit Judge, erred in applying the principle of these cases to the facts here.
As to the ground rent of the precise locus upon which the improvements were erected, or of the unimproved portion, the master does not seem to have estimated this, nor did the Circuit Judge rule upon that point. There was no exception to the master’s report involving this point, nor any claim made for it before the Circuit Judge; but even if this question was properly before us, we have been referred to no case, nor have we found any, where, in estimating rents and profits against a co-tenant for improvements, a distinction has been tárawn between said improvements and the ground upon which they stood, the improving tenant being exempt for the one and held liable for the other. It is manifest here that the unimproved ground was worthless except for the improvements, and also that that portion on which the improvements were erected was made rentable only on account of the improvements, so that its rentable value, if any, was due to the improvements, and might well be classed as an improvement made by the tenant’s own labor, and therefore exempt, as the houses have been exempt. Lewis v. Price, 3 Rich. Eq., 198.
The equity of the defendant in this case to be reimbursed for her improvements on the portion of the lot assigned to the plaintiff is supported by the following authorities: Scaife v. Thomson, supra; Woodward v. Clarke, 4 Strob. Eq., 167; Rowland v. Bess, 2 McCord Ch., 317. Judge Kershaw says that the commissioners seem to have considered the parcels of land allotted to each of the parties to be of equal value without the improvements. These improvements, then, were left open as a matter for adjudication in the final determination of the rights and equities of the parties, and we do not think that Judge Kershaw erred in requiring the plaintiff to account for the value of the store or shop erected on her lot at the expense of the defendant under the circumstances of the case.
There is no ground for defendant’s exception claiming exemption from the half value of the old kitchen, as decreed by the judge.
May 24, 1886.
The only thing remaining is the matter of costs. This is an equity case, and the costs are under the control of the judge, if he sees proper to decree on that question; otherwise costs follow the event of the suit, as in cases at law. Judge Wallace’s order 'of reference was not such a final- decree as would carry costs, in the absence of an order otherwise. It was competent, therefore, for Judge Kershaw to decree on this matter.
It is the judgment of this court that the judgment of the Cir^cuit Court be affirmed.
In this case a petition was filed by the plaintiff asking a rehearing of so much of her appeal as was embraced in her third exception, upon the1 ground that a tenant in common, to whom has been assigned in severalty a portion of the land, cannot be required to pay for improvements put, without his consent, upon such portion by a co-tenant; citing and quoting from Dellet v. Whitner, Chev. Eq., 229; Martin v. Evans, 1 Strob. Eq., 355; Thurston v. Dickinson, 2 Rich. Eq., 317; Lewis v. Price, 3 Id., 198; Thompson v. Bostick, McMull. Eq., 79; Williman v. Holmes, 4 Rich. Eq., 476; Scaife v. Thomson, 15 S. C., 337; Annely v. DeSaussure, 17 Id., 391; Buck v. Martin, 21 Id., 590.
Mr. Chibe Justice Simpson.
As a general rule, and in ordinary cases, where co-tenants .are well known and easy of access, and improvements are made by one without consultation with the others, they are made at the risk of the improving tenant, and will not,, as matter of right, be allowed him in the partition of the premises. 1 Story Eq. Jur., § 655; Thurston v. Dickinson, 2 Rich. Eq., 317; Dellet v. Whitner, Chev. Eq., 223; Hancock v. Day, McMull. Eq., 69; Thompson v. Bostick, Ibid., 79. Where, however, improvements are made by one co-tenant under the belief that he has in severalty a fee simple title to the premises, or where said 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, the disposition of the Court of Equity [265]*265has always been to give him the benefit thereof if practicable, and as far as consistent with the equity of the co-tenants, especially as against the claim of one who subsequently thereto establishes his right as co-tenant. 1 Story Eq., § 655.
Under this principle, the cases of Williman v. Holmes, 4 Rich. Eq., 476; Scaife v. Thomson, 15 S. C., 368; Annely v. DeSaussure, 17 S. C., 391; Johnson v. Harrelson, 18 S. C., 604; Buck v. Martin, 21 S. C., 592, were decided, modifying the general rule above by allowing the improving tenant not the original cost of his improvements, but the increased value of the premises imparted in consequence of said improvements, this benefit being secured to him either by assigning the improved portion of the premises to him without charging the improvements, or by sale of the premises, the increased purchase money in consequence of the improvements being allowed him in the distribution of the proceeds of said sale. The equity, however, of the improving tenant to this added value does not depend upon the mode which was adopted in these cases to enforce it, but it rests upon the facts of each case, and is applicable to every case where the facts are of such a character as to demand it, and where, at the same time, it can be enforced without injustice to others, as where the improving tenant has reason to believe that he is the exclusive owner, or where it would be a great and obvious hardship to depi’ive him of it, and at the same time accompanied with the further fact that the allowance can be made consistently with the equity of the co-tenants. Story Eq., supra.
. Now, in the case at bar the improvements were made while the improving tenant was in the exclusive possession of the premises, holding as sole owner, and before even any claim or notice of opposing title had been made upon her. There was no doubt, therefore, as to the equity of her claim to the value of the improvements erected by her, and inasmuch as the added value of these improvements, independent of the land, was fully ascertained by testimony taken before the master at the time and w'ith the view to the partition sought, the enforcement of this equity here, and under the facts of the case, was not "only proper, but was in full accord with the cases, supra, sustaining the modification of the general rule. It will be seen at once, therefore, that [266]*266there is no conflict between the case at bar and the cases referred to in the petition and cited to the general rule. Nor were said cases overlooked by us in rendering our judgment.
We have been more elaborate in giving the reasons for dismissing this petition than usual, for the reason that there is a manifest misapprehension on the part of counsel as to the decisions of this court on the subject of improvements by co-tenants. The petition is dismissed.