The plaintiffs, as creditors whose debts were secured by a deed
of trust on land in Mississippi, having brought a suit in equity to
enforce the trust and to sell the land, joined as defendants, by a
supplemental bill, persons in possession, who claimed to own the
land under a title founded on a sale made under a judgment
recovered prior to the execution of the deed of trust, but which
judgment had been held by this Court, in the same suit (
Bank v.
Pence, 99 U. S. 325),
before the filing of the supplemental bill, to be void, as against
the plaintiffs. The defendants in possession set up a claim to be
allowed for the amount they had paid in discharge of a lien or
charge on the land created by a will devising the land to the
original grantor in the deed of trust, and for taxes paid, and for
improvements. These claims were allowed.
A devise of land was made by a will, upon specified conditions,
"under the penalty, in case of noncompliance, of loss of the above
property," the conditions being to pay certain money legacies, and
a life annuity in money. Then other legacies in money were given.
Then there was a provision, "that all the legacies which I have
given in money and not charged upon any particular fund" should not
be payable for two years "after my decease," followed by a
provision as to the payment by the devisee of interest on the
first-named money legacies after she should come into possession of
the land devised. No other money legacies were given payable by any
person on conditions, and there were no other legacies in money
which could answer the description of legacies in money charged on
a particular fund.
Held that the life annuity was a charge
on the land devised.
The statute of Mississippi, Revised Code of 1857, c. 57, article
15, p. 401, which provides, that
"No judgment or decree rendered in any court held within this
state shall be a lien on the property of the defendant therein for
a longer period than seven years from the rendition thereof,"
does not apply to a decree of a court of chancery in Mississippi
establishing the arrears due on such life annuity as a specific
lien on such land by virtue of such will in a suit in chancery
brought by the life annuitant.
The will being proved and recorded in the county where the land
was situated, it was not necessary, in such suit in chancery by the
life annuitant, to make as defendant the trustee in a deed of trust
made by the devisee under the will, provided, in a suit to enforce
the deed of trust, brought by the beneficiaries under it, they were
given the right to contest the validity of the lien claimed by the
life annuitant and to redeem the land from such lien, when
established.
Page 111 U. S. 67
The defendants claiming title under the devisee, and she being
entitled to a distributive share of the entire estate of the life
annuitant, who died during the pendency of such suit in chancery,
it is not proper to abate from the allowance to the defendants of
the amount paid by them to discharge the decree in such suit, any
sum on account of the distributive share of such devisee in the
amount so paid.
The defendants having acquired their title under a deed of trust
executed after the original bill in this suit was filed and before
the grantor in such deed was served with process in this suit, it
was held that they, being in fact purchasers in good faith, were
not chargeable with notice of the intention of the plaintiffs to
bring this suit within the provisions of the Revised Code of
Mississippi of 1871, c. 17, article 4, § 1667, in regard to
allowances for improvements on land to purchasers in good faith,
until they were served with process on the supplemental bill.
The meaning of the words "good faith" in the statute, and as
applicable to this case, defined.
The amount allowed by the circuit court for improvements, upheld
as proper under the special circumstances.
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
The litigation involved in this appeal is a continuation of that
which was before this Court in
Bank v. Partee,
99 U. S. 325. The
plaintiffs in the suit were appellants then and are appellants now.
The original bill was filed April 1, 1873, in the Circuit Court of
the United States for the Southern District of Mississippi, by the
appellants, as creditors of Sarah D. Partee and William B. Partee,
her husband, to secure to them the benefit of a deed of trust
executed by the debtors to one Bowman, covering lands in Yazoo
County, Mississippi, the object of the deed being to provide for
the payment of debts, among which were those due to the appellants.
The circuit court excluded the appellants from the benefit of the
deed of trust because of their failure to notify in writing within
a time limited by the deed their acceptance of its terms, and that
court also held that the title to certain of the land covered by
the deed had failed in the trustee because of a paramount
Page 111 U. S. 68
title thereto perfected under a judgment recovered against the
debtors by one Stewart before the execution of the deed of trust.
This Court held that notwithstanding the provision in regard to an
acceptance in writing of the terms of the deed, the appellants were
entitled to its full benefits, and that the judgment of Stewart was
a nullity as respected Mrs. Partee, who was the debtor to Stewart
and was the owner of the lands covered by the deed of trust. This
Court reversed the decree below and remanded the cause for further
proceedings in April, 1879.
Stewart and James D. Partee, a son of the debtors, had become
the purchasers of the land sold under the Stewart judgment. In May,
1879, after the filing in the circuit court of the mandate from
this Court, the appellants filed a supplemental bill. One acre of
the land bought by Stewart and a part of the land bought by James
D. Partee are involved in that bill and in the present appeal. The
original deed of trust was made November 19, 1866. The deed of the
sheriff to James D. Partee on the sale under the Stewart judgment
was made January 4, 1869, the judgment having been recovered June
6, 1866. The land so conveyed to James D. Partee was in quantity
equal to five and one-eighth sections, and was all in township 9,
of range 4 W., in Yazoo County, embracing land in seven different
sections. The land constituted what is known in this controversy as
two plantations, called "No Mistake," and "Tyrone." In February,
1870, James D. Partee and his wife conveyed these plantations to
one Barksdale, in trust to secure an indebtedness of $41,500 to the
firm of Nelson, Lamphier & Co. Under this deed of trust, the
plantations were sold and conveyed by the trustee to one Nelson, a
member of that firm, in June, 1872. On April 15, 1873, Nelson
conveyed the plantations to one Short in trust to secure an
indebtedness of $35,000, embracing eighteen promissory notes to
said firm. Two of these notes came to be owned by Joseph P. Benson,
and two by Charles C. Ewing, as administrator of S. S. Ewing, and
they, with holders of others of the notes, brought a suit in equity
in August, 1876, in the Chancery Court of Yazoo County, to
foreclose said trust deed. A decree of sale was made in January,
1877, and the said Benson and Ewing
Page 111 U. S. 69
and one Robert G. Hudson purchased the lands at the sale, in
February, 1877. On July 3, 1877, Benson conveyed to Ewing and
Hudson all his interest in the plantations. They are the appellees
in this appeal.
The plantations were originally the property of one James Dick,
who was the uncle of Mrs. Sarah D. Partee. They were known together
by the name of "No Mistake." By that name they were devised by
Dick, by will, to Mrs. Partee. The will was proved in March, 1849.
Mrs. Partee's parents were Christopher Todd and Sarah Todd. The
will contained these provisions:
"To my niece, Sarah D. Todd, wife of William B. Partee, of New
Orleans, and to her heirs, I give and bequeath: 1st, my plantation,
commonly called 'No Mistake' plantation, near Satartia, Yazoo
County, State of Mississippi, with all the negroes, horses, mules,
cattle, buildings, and farming utensils that may be found on said
estate at the time of my death and belonging to me; 2d, I give and
bequeath to the said Sarah D. Todd and to her heirs about six
thousand acres of land, situated in this state and entered by E.
Lawrence and Brashear in my name. This bequest is made to Sarah D.
Todd, wife of William B. Partee, upon the following conditions,
under the penalty, in case of noncompliance, of loss of the above
property:"
"The first of said conditions is that the said Sarah D. Todd,
wife of the said William B. Partee, shall within the next ensuing
month after my death pay to Miss Elizabeth Calhoun, of Maury
County, State of Tennessee, and to Nathaniel Calhoun, and to
Christopher Calhoun, his brother, children of Margaret Todd, wife
of Charles Calhoun, and residing in Maury County, Tennessee, the
sum to each of twelve thousand dollars -- that is to say, to Miss
Elizabeth Calhoun the sum of twelve thousand dollars, to Nathaniel
Calhoun the sum of twelve thousand dollars, and to Christopher
Calhoun twelve thousand dollars, and in the case of the death of
either or any of them without issue, then the sum or sums coming to
said deceased parties or their heirs to be given to the survivor or
survivors, in equal proportions."
"The second of said conditions is that the said Sarah D. Todd
and her heirs shall pay to Christopher Todd and to Sarah, his wife,
my sister, one thousand dollars per annum during the life of
either, payable as they or the survivor may require it. "
Page 111 U. S. 70
The will then gives various lands and legacies in money to
various persons named, and then proceeds:
"And my will is as follows:"
"That all the legacies which I have given in money and not
charged upon any particular fund is not demandable from any person
whomsoever for the term of two years after my decease. . . . And
should any legatee endeavor by action of any kind or nature, before
any court in any state, to break, injure, or destroy any of my
depositions, the bequest or legacy to such person or persons is
annulled or rescinded by me. The legacies of $12,000 each to
Elizabeth Calhoun, Nathaniel Calhoun, and Christopher Calhoun may
be paid by Sarah D. Todd, wife of William B. Partee, in the
following manner,
viz., to Elizabeth Calhoun, on the day
of her marriage, and to Nathaniel and Christopher, when they become
of age, upon condition that the said Sarah D. Todd pays to the said
legatees annually interest at seven percent upon their respective
legacies, after she comes in possession of 'No Mistake'
plantation."
Mrs. Todd having died in 1853, and Christopher Todd having been
paid his annuity up to January 1, 1861, he filed a bill in
chancery, in November, 1867, in the Chancery Court of Yazoo County
against William B. Partee and his wife, claiming that such annuity
was a charge on the land so devised to Mrs. Partee and praying for
a sale of the land to pay the arrears due on the annuity.
Christopher Todd having died during the pendency of the suit, it
was revived in the name of Edward Drenning, his special
administrator, and the court, on June 8, 1868, made a decree that
there was due to Todd at his death, as an annuitant under said
will, $7,680.04; that that sum was a lien on said "No Mistake"
plantation, against all liens created thereon since the death of
Dick, and that said land be sold to pay that sum. It was sold, by
the same description as in said conveyance to James D. Partee, to
said Hudson and Ewing, on April 15, 1878, they being then the
owners of the decree in the suit, and they received a deed of that
date therefor. In 1871, James D. Partee, as owner of the land, had
paid a part of the Drenning decree. In February, 1877, Drenning was
paid the balance by Robert G. Hudson, and assigned the decree
Page 111 U. S. 71
to him, under an order of the chancery court, the assignment
being for the benefit of Benson, Hudson, and Ewing. Afterwards
Hudson and Ewing acquired all the interest of Benson therein.
Hudson and Benson, and Charles C. Ewing, individually and as
administrator of S. S. Ewing, and Drenning, as executor of Stewart
and as administrator of Todd, were made parties to the supplemental
bill in this suit. That bill attacks the validity of the Drenning
decree and claims an account of the rents and profits of the land.
The parties defendant having put in answers, to which there were
replications, the court ordered that the controversy as to Hudson
and Ewing and Drenning proceed separately.
On the 29th of November, 1880, that court made a decree setting
aside the deeds under which Hudson, Benson, and Ewing obtained
title and decreeing that the deed of April 15, 1878, to Hudson and
Ewing, on the sale under the Drenning decree, was subject to the
right of redemption of the appellants as junior encumbrancers,
under the original trust deed of November 19, 1866; that Hudson and
Ewing were entitled to be reimbursed what they had paid to Drenning
in purchasing his decree, with interest, that amount being
$9,391.23, paid February 5, 1877, and being a paramount lien on the
lands in controversy; that Hudson and Ewing were entitled to be
reimbursed what they had paid for taxes, and the value of all
improvements of a permanent character put on the lands by them, and
repairs, but were responsible for a reasonable sum annually for the
use and occupation of the lands up to January 1, 1881; that for the
balance due them on an accounting, they should have a lien on the
lands superior to that of the appellants; that the balance, if any,
due by them should be deducted from the amount due them on account
of the Todd legacy; that the appellants were entitled to foreclose
their trust deed and sell the land subject to such prior claim of
Hudson and Ewing; that an account be taken by commissioners as to
the amount due to Hudson and Ewing on the Todd legacy decree, and
for taxes paid, and as to the fair rental value of the lands during
the time they had occupied
Page 111 U. S. 72
and cultivated or leased the same, and interest on such sums
from the time they would usually become due and payable, and of the
improvements and repairs put on the lands by Hudson and Ewing,
"and interest on the value of such portions thereof, from the
time of payment or making said repairs and improvements, as may
have directly contributed to the enhanced rental value of said
lands;"
that, in estimating the fair rental value of the lands, the
commissioners should inquire what they would have brought in money
if leased together or separately to a solvent lessee or lessees, on
the usual or customary terms of leasing such lands as entire
plantations or an entire plantation, without reference to any
system of underletting pursued by Hudson and Ewing, with as well as
without the improvements claimed for by them, and that for all
improvements and repairs which directly contributed to enhance the
rental value of the lands, the commissioners should allow the
original fair cash value, and interest from the date at which they
were made or furnished, and for all other improvements which
enhanced the permanent value of the lands, their actual value at
the time of taking the account.
On the 24th of November, 1881, the commissioners made their
report. It is set forth in the record, but the account annexed to
it and the testimony taken by the commissioners are not set forth.
The result was that they found due to the appellants by the
appellees $8,865.99, and to the appellees by the appellants
$37,697.92, and that the balance due to the appellees was
$28,831.93. The appellants excepted to the account and the report
by nineteen exceptions. Thereafter the exceptions were heard by the
court, and it filed an opinion, which states that the account is
not in accordance with the directions of the court or the equities
between the parties. It then proceeds:
"I have examined and reexamined the account filed by the
defendants, and have maturely considered the testimony on both
sides, and have arrived at conclusions which I am satisfied meet
the equities on both sides as nearly as can reasonably be
reached."
It then states conclusions of fact on which the rent for 1877 is
fixed at $1,000. It then sets forth certain improvements which the
defendants made in 1878, and states that they charge therefor
Page 111 U. S. 73
$3,199.37, claiming that these improvements were necessary and
enhanced the rental value of the premises; but it says that the
improvements "ought not to have been considered as constituting
part of the rents," but must be considered "as adding to the
permanent value of the lands." It then says:
"I have closely examined the account, and, making a liberal
allowance for the cash value of the same on the first of January,
1881, when the same were surrendered to the receiver, the sum of
$2,053.50 is all that should be allowed,"
with interest from January 1, 1881. The opinion then sets forth
other improvements which the defendants made in 1878, and states
that it was claimed they "were necessary, and enhanced the rental
value of the place, and should be estimated at their original cost,
and interest," but it says that the value of those improvements
consisted
"mainly in their permanency, which should be estimated at their
cost value when the property was surrendered, but as it did
contribute to some extent to the rental value for that and
succeeding years"
during the defendants' occupancy, $4,897.35 was allowed, "at a
fair estimate" under that rule, as the value of those improvements,
being "more than the permanent value, and less than the cost." The
rent for 1878 was fixed at $1,500. Deducting from the $4,897.35 the
rent for the two years, $2,500, left $2,397.35, with interest from
January 1, 1879. The opinion then states what improvements the
defendants made in 1879, that they "were of the same character with
those erected in 1878," and that they amounted, "at an estimate
made under the rule above stated," to $2,997.68, "from which take
the sum of $2,500, as estimated, as a reasonable rent for that
year," which leaves to be allowed $497.68, with interest from
January 1, 1880. The opinion then states that the repairs made in
1880 were small, but there were several items charged for
improvements made in 1878, 1879, and 1880 not before stated, and
which could not be well stated except as a whole. It then considers
at length sundry items, and allows some and disallows others and
reduces others, and allows for the items, "all taken together,
including improvements made in 1880," $3,655.16, and deducts from
that $3,000, as rent for 1880, leaving $655.16, with interest from
January 1, 1881. On
Page 111 U. S. 74
the rendering of that opinion, it was ordered by consent of
parties that the opinion and the schedule attached to it (which was
a statement of the items and amounts allowed in the opinion) should
"be filed and treated as part of the record in the cause," and that
the court might "by order, without reference to a commissioner,
ascertain and fix the several amounts, as well as the aggregate sum
due to the defendants Hudson and Ewing," under the decree of
November 29, 1880.
Thereupon, on the 18th of February, 1882, the court made a final
decree. That decree states that the case was heard on the
exceptions to the report of the commissioners; that the court,
being of opinion that said report does not conform to the decree of
November 29, 1880, orders "that said report and the account
therewith presented be set aside," and "after argument of counsel,
proceeding to the decision of the several questions of law and fact
involved in the cause," adjudges that there is "due to the
defendants Hudson and Ewing, under the judgment and findings of the
court on said exceptions, on account of the Todd legacy decree,"
$12,365.77, and on account of the taxes paid on and by said
defendants on the lands, $1,567.44, and that, "after ascertaining
and crediting the amount due for reasonable rents" of the lands,
"there is a balance due to the said defendants, on account of
improvements, repairs, and betterments," of $6,309.60, making a
total sum due them of $20,242.83, with interest from that date. The
decree then finds the amounts due to the several plaintiffs on
their notes, being an aggregate of $47,136.06, with interest from
that date, and adjudges that the plaintiffs are entitled to redeem
the lands, and that on their paying, within sixty days, to the
defendants, the $20,242.83, with interest, they should be
substituted to their rights as senior encumbrancers on the lands,
and might enforce payment thereof by a sale of the lands; that if
the plaintiffs should not pay that sum, then the lien of the
defendants and that of the plaintiffs should be enforced, and the
lands should be sold, and out of the proceeds the amount so due to
the defendants should first be paid. From this decree the
plaintiffs have appealed.
The only questions presented by this appeal are as to the
Page 111 U. S. 75
allowance in respect of the Denning decree, and as to the
allowances for improvements and repairs, and the charges for
rent.
It is contended by the appellants that under the will of Dick,
the annuity legacy to Todd and his wife was not a charge on the
plantation devised to Mrs. Partee, but was only a personal claim
against her, to be enforced by proper proceedings for the
forfeiture of the land on a breach of the conditions specified in
the will. The argument made is that the penalty imposed by the
will, of loss of the property in case of noncompliance with the
conditions, shows that the testator did not intend to create a
lien. But we are of opinion that, taking the whole will together, a
lien was created. The reference to the prior legacies given in
money, and not charged on any particular fund, of which there are
many, shows that there must have been some prior legacies in money
which were charged on a particular fund, and the fact that no other
legacies in money but those which Mrs. Partee is to pay, as
conditions on which the plantation is given to her, are given
payable by any person as conditions on which property is given to
such person, and that there are no other legacies in money which
can answer the description of legacies in money "charged" on a
"particular fund," all combine to furnish persuasive evidence that
the legacies which Mrs. Partee was to pay were a lien on the
plantation. The intention of the testator seems to be clear, and
the plantation is not inappropriately called a "fund." Nor can the
lien or charge be limited to the 6,000 acres of land. The
conditions attach to the entire bequest, consisting of two items.
They apply to the legacies to the three Calhoun children, and to
the annuity legacy to Christopher Todd and his wife, and the
subsequent provision as to the times when Mrs. Partee may pay the
several legacies to the Calhoun children, on condition that she
pays them annually interest on such legacies after she comes in
possession of the plantation, shows that that plantation is given
to her on condition that she pays those legacies, and, if so, such
annuity legacy must be in the same category.
Birdsall v.
Hewlett, 1 Paige 32;
Harris v. Fly, 7 Paige 421;
Loder v. Hatfield, 71 N.Y. 92, 97.
Page 111 U. S. 76
It is further contended that the Drenning decree, which was made
June 8, 1868, was barred, as to its lien, by the Mississippi
statute of limitations, when it was purchased by Hudson for himself
and Ewing and Benson in April, 1877. The statute relied on is
article 15 of chapter 57 of the Revised Code of Mississippi of
1857, p. 401, in these words:
"No judgment or decree rendered in any court held within this
state shall be a lien on the property of the defendant therein for
a longer period than seven years from the rendition thereof."
It is plain, we think, that this statute applied only to a
judgment or decree rendered
in personam against a
defendant, for the recovery of so much money, and which became a
general lien on the property of the defendant in the judgment or
decree by virtue of another statutory provision, such as article
261 of chapter 61 of the same Code, p. 524. Article 15 of chapter
57 has no reference to such a decree as the Drenning decree here,
one establishing and enforcing a specific lien on devised property,
created by a will, the decree being made in a suit in chancery
brought for that especial purpose. The decree adjudges that the
amount found to be due was made by the will of Dick a lien and
charge on the plantation devised to Mrs. Partee, and decrees that
the plantation stand charged with the payment of that amount,
against all liens created thereon by the defendants in the suit
since the death of Dick. The decree adjudges, it is true, that the
defendants pay to the plaintiff the sum so found due within thirty
days and that, in default thereof, enough of the plantation be sold
to pay such sum. But no execution is awarded against the defendants
as on a personal judgment, nor is there any provision for a decree
for a deficiency. It was held in Mississippi, in
Cobb v.
Duke, 36 Miss. 60, in 1858, that a court of equity had no
jurisdiction to make a decree
in personam, for a
deficiency on a bill to enforce a vendor's lien on land, or on a
bill to foreclose a mortgage. The same principle applies to the
lien in question here. The decree did not create a lien, but merely
give effect to the lien and charge which the will created. In a
decree
in personam for the recovery of money, the statute
provided for a lien on
Page 111 U. S. 77
all the property of the defendant in the county; but this decree
affected only the specific property in question, and, as to that,
related back and overreached all liens on it since the death of
Dick, while a judgment
in personam became a lien only from
the time it was rendered.
The bill filed by Todd to enforce his lien made defendants only
William B. Partee and his wife. Bowman, the trustee in the
appellants' trust deed, was not made a party. But the will of Dick
was proved and recorded in Yazoo County, and the appellants,
claiming under Mrs. Partee by a subsequent deed of trust, took the
land subject to the lien and charge created by the will. The
appellants aver in their original bill that a letter was written by
Bowman, the trustee, two days after the deed of trust was made, to
the appellants' attorneys in New Orleans, in a copy of which letter
annexed to the bill it is stated, as the result of an examination
of the records of Yazoo County, with the view of ascertaining what
liens or encumbrances there were on the property of Mrs. Partee,
that, under the will of Dick, from whom the property was derived,
there was an annuity of $1,000 to be paid to one Todd during his
lifetime. The only effect of the omission to make Bowman a party to
the suit was to leave the title of a purchaser under the decree in
the suit subject to the right of the appellants, as junior
encumbrancers, to contest the validity of the prior lien, and to
redeem the property. This right has been accorded to them.
The appellants also claim that there should be an abatement of a
portion of the amount paid by the appellees to Drenning, to the
extent of Mrs. Partee's distributive share in that amount, as a
part of the estate of Christopher Todd, her father. In February,
1877, when Drenning received payment of the balance due on the
decree, he was the legal owner of the decree. He had not then been
made a party to this suit. Mrs. Partee had no claim in respect of
any money due on the decree other than such claim as she had to her
proper share of the entire estate of her father, in due course of
its administration. When the decree was purchased by the appellees,
no claim of Mrs. Partee was attached to or impressed upon it, or
the
Page 111 U. S. 78
moneys due or paid on it. She had no title to any specific part
of the uncollected legacy, and could not interfere with its
collection or administration. When her share in her father's estate
should ultimately come to be ascertained, she might, if still
owning the plantation, and interested to free it from the charge of
the legacy, set off against the decree the amount coming to her
from the general estate. But in the absence of any right on her
part to any specific share of the legacy, there was nothing to
affect or diminish or extinguish or merge the amount of the charge
on the plantation. The Todd estate must be left to its due course
of administration, and cannot be interfered with or administered in
this suit.
The only material questions remaining are those connected with
the allowances for improvements. In a decree made by the court
below in this suit on November 20, 1879, on a hearing on exceptions
to the answer of Hudson and Ewing, it was adjudged that they,
claiming title to a part of the property in controversy, under a
trust deed executed by Nelson, a defendant in the original bill
herein, on the 15th of April, 1873,
"prior to any process, publication, or appearance in this cause
by said Nelson, are not estopped as to said property by the
lis
pendens or the proceedings heretofore had in the cause, from
answering the original bill,"
but "are proper parties defendant to the said original bill, as
having a substantial interest in the original controversy." The
title of Nelson, as a support to any title of the appellees to the
land, was destroyed by the decision as to the Stewart judgment. The
original bill herein was filed April 1, 1873. Nelson was made a
defendant to it. Process of subpoena was issued against him July 8,
1873, but was not served. On November 10, 1873, on an affidavit
that Nelson resided in Tennessee, an order of publication against
him was made. He appeared on the 30th of January, 1874, and
answered on the 11th of February, 1874. Meantime, on the 15th of
April, 1873, Nelson made to Short the deed of trust before
mentioned, on a sale under which the appellees purchased the land
in February, 1877. The supplemental bill was filed May 27, 1879,
after the appellees had acquired all their titles. They were made
parties to it, and were served with process, Hudson
Page 111 U. S. 79
June 30, 1879, and Ewing July 4, 1879. They admit in their
answer that at the sale under the Drenning decree on the 15th of
April, 1878, one of the attorneys for the appellants appeared and
asserted some claim in behalf of the appellants in the hearing of
Hudson. There is nothing more in the record on that subject, and
just what the assertion of claim was, or to what extent, does not
appear. Their answer alleges that
"they purchased the property in good faith, and went into the
possession of the same, believing they had a good title to the same
and could hold it against the claims of all the world, and without
any knowledge whatever of the claim of complainants, or of this
suit, and that they paid, including the Todd decree, the full value
of all the property purchased by them, in its then bad and
dilapidated condition, and have since enhanced the value of the
same very greatly by putting upon it permanent and valuable and not
ornamental improvements,"
and
"that they are entitled to pay, in case they should be adjudged
not to have the title to said property, for the valuable and
permanent and not ornamental improvements they have put on said
property, up to the time they were served with notice in this case,
or, if not entitled to pay for all said improvements up to that
date, they are for all said improvements up to the time"
of said notification on April 15, 1878. The answer also insists
on the validity of the title of the appellees. By consent of
parties and the order of the court made in February, 1880, they
were allowed to remain in possession of the land for the year 1880
on giving a bond to account for the fair rental value for that year
if the court should finally decide that they should account for
said rent. As has been seen, they were allowed for some
improvements to the end of 1880. They entered into possession of
the land January 1, 1877, and surrendered possession to the
receiver in this suit January 1, 1881.
It is manifest that the claim for allowances for improvements
set up in the answer is intended to be based on the provisions of
the statute of Mississippi, Revised Code of 1871, c. 17, art. 4, §
1557, which enacts that
"It shall be lawful in all cases, for the defendant in ejectment
or in an action for mesne profits to plead the value of all
permanent, valuable, and not
Page 111 U. S. 80
ornamental, improvements made by the defendant on the land, or
by anyone under whom he claims, before notice of the intention of
the plaintiff to bring the action, giving notice, with his plea, of
the character of the improvements, and the value thereof, and if
such improvements shall exceed the value of the mesne profits and
damages, the jury shall find the actual cash value of such
improvements, the value of the mesne profits and damages, and also
the actual cash value of the land, without the improvements, and
the defendant shall have a lien upon the land for the difference
between the value of the mesne profits and the value of the
improvements so found; . . . but no defendant shall be entitled to
such compensation for improvements unless he shall claim the
premises under some deed or contract of purchase made or acquired
in good faith."
The Supreme Court of Mississippi interpreted this statute in
1876 in
Cole v. Johnson, 53 Miss. 94, in a suit in
chancery brought by a person who had bought lands at a void probate
sale and paid for them and put valuable improvements on them, to
restrain an ejectment suit against him and to have an account taken
of the rents and profits, and of the improvements and purchase
money, the latter having been applied to pay the debts of the
estate, and to set them off against each other and charge on the
land the balance due the plaintiff. Such relief was granted. It was
urged for the defendants that as the defects in the probate
proceedings were patent on the record, by inspection, the plaintiff
was not a purchaser in good faith, and did not pay his money in
good faith. The court held that it was sufficient if the money was
"genuinely paid," without any knowledge or suspicion of fraud, the
item "good faith" being used in contradiction to "bad faith;" and
that the expressions as to "good faith" in § 1557 did not import
that the claim to compensation for improvements could not be
maintained if the purchaser could, by any possible research, have
discovered the invalidity of his title, and meant nothing more than
an honest belief on the part of the purchaser that he was the true
owner. The court adopted the rule stated in
Green v.
Biddle, 8 Wheat. 1,
21 U. S. 79, that
a "bona fide possessor" of land is one
"who not only supposes himself to be
Page 111 U. S. 81
the true proprietor of land, but who is ignorant that his title
is contested by some other person claiming a better right to
it,"
and that after such occupant has notice of such claim, he
becomes "a
mala fide possessor." It further said:
"Our view is that in order to deprive the occupant of land under
color of title of the value of 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."
Speaking of "
crassa negligentia," it added:
"Where the purchase is made under circumstances which would
warrant the imputation of such negligence to the purchaser, as if,
for instance, a deed was received without inquiry, from a mere
stranger to the land, who had neither possession thereof nor any
actual or apparent claim thereon, the claim of being a
bona
fide purchaser might well be rejected. But we do not think
such imputation can ever be predicated of a judicial sale because
of defects in the record where the land has been bought by a person
disconnected with the proceedings, and with no actual notice or
suspicion of the irregularities contained in them."
The circuit court, it is clear, found in this case that the
appellees acquired their alleged title in good faith under the rule
thus established. The evidence is not in the record, and must be
regarded as sufficient to support such finding. It is shown that
the appellees purchased under a tax title in January, 1876, went
into possession January 1, 1877, purchased the Drenning decree
February 5, 1877, purchased at the sale under the deed of trust
from Nelson to Short, February 19, 1877, and purchased at the sale
under the Drenning decree April 15, 1878. We do not think that the
notice, whatever it was, given at the sale of April 15, 1878, was
sufficient to charge the appellees with
mala fides, and
that there was nothing amounting to the "notice" specified in the
statute, until the process under the supplemental bill was served
on the appellees.
The only questionable period left open is that which
remained
Page 111 U. S. 82
until the close of 1880. The testimony on which the circuit
court acted is not before us. It is plain from the opinion of the
court that from the testimony it had, it found that the
improvements on the plantation, which was a cotton plantation, and
the facilities for preparing the cotton crop for market, were
dilapidated when the appellees took possession; that the
improvements made, and the clearing of more land, in 1878, added
fifty percent to the rent for that year, and that there was thus
constituted a permanent fund for increased rent for after years, so
that, with the additional improvements made in 1879, the rent for
1879 was equal to the rent for both of the two preceding years, and
the rent for 1880 was increased $500 over that for 1879. The year
1879 must be considered as a whole from January to January. It is
impossible to tell, as the proof is not before us, how much was
allowed for improvements made in 1880, as the fencing allowed for
1880 is stated in the opinion to have been mostly made in 1878 and
1879, and it states that there are several items of charge for
improvements made in 1878 and 1879, and less in 1880, which cannot
well be stated otherwise than as a whole. As we have not the
testimony which the circuit court had, and it appears to have been
carefully and minutely considered by that court, and the appellees
appear to have remained in possession during 1880 by consent and
under the sanction of an order of the court, we cannot arrive at
the conclusion, on this appeal, that the amount allowed ought to be
reduced. It is not to be forgotten that the appellants were seeking
merely a sale of the land by a resort to a court of equity, and
that while they had the benefit of some of the improvements in
increasing rents, that had the benefit of the material and
permanent ones in the increased value of the lands for the purpose
of sale, including the increased area of cultivated land. In such a
case, there is no inflexible rule that the allowance for permanent
improvements shall not exceed the rental value during the
occupancy.
The present case has an analogy to that of a purchaser at a
foreclosure sale, who makes valuable improvements in the belief
that he has acquired an absolute title. He is entitled to be paid
for them if the premises are redeemed. 2 Jones on Mortgages
Page 111 U. S. 83
§ 428. Where a party lawfully in possession under a defective
title makes permanent improvements, if relief is asked in equity by
the true owner, he will be compelled to allow for such
improvements. 2 Story Eq.Jur. § 1237, note 1;
Bright v.
Boyd, 1 Story 478, and 2
id. 605;
Putnam v.
Ritchie, 6 Paige 390;
Williams v.
Gibbes, 20 How. 538.
All the questions raised by the counsel for the appellants have
been examined and considered, but we have not thought it necessary
to comment on others than those above reviewed. Upon the whole
case, we are of opinion that
The decree of the circuit court must be affirmed.