Beard v. Dansty

• Decision Date: 15 January 1887
• Citation: Beard v. Dansty, 2 S.W. 701, 48 Ark. 183 (Ark. 1887)
• Parties: BEARD v. DANSBY
• Court: Arkansas Supreme Court

2 S.W. 701

48 Ark. 183

BEARD v. DANSBY

Supreme Court of Arkansas

January 15, 1887

APPEAL from Drew Circuit Court, Hon. W. F. SLEMONS, Special Judge.

Judgment reversed and cause remanded.

McCain & Crawford, for appellant.

First--The betterment act applies to pending suits. 43 Ark. 420; 44 ib 365.

Second--It also applies to minors, etc.; does not rest upon contract or consent of parties.

Third--The rents should not have been assessed beyond three years before the commencement of the suit. Tyler on Eject., 681, 844; 1 Chitty on Pl., sec. 296; 1 Wash. R. P., 3d Ed., 568; Mansf. Dig., sec. 2646.

Fourth--Evidence of value of improvements, in mitigation of damages, was admissible. (Bouvier Law Dict., Mesne Profits; Sutherland on Dam., vol. 3, 349.) So far as persons sui juris are concerned, the betterment act did not change the common law except in allowing the defendant judgment over for the surplus value of his improvements above the amount of rents. Wood's Mayne on Dam., sec. 586; Waterman on Set-Off, sec 537, and notes; 10 Ark. 186; 19 ib., 70; Tiederman on Real Prop., sec. 702; 42 Ark. 118; Malone on Real Prop., 120; Adams Eject., 391, and notes; Sedgw. & Wait Trial of Land Titles, sec. 698; 33 Ark. 576.

The owner of wild land is not allowed to recover rents from one who, in good faith, cleared up the land, when the land would otherwise have had no rental value. 33 Ark. 490; Malone on Real Prop., Trials., 132.

The universal rule for assessing damages in ejectment is "compensation." Sedg. & Wait Trials, etc., Land Titles, pp. 440, 449.

See, also, case of Shaw v. Hill, 47 Ark.

OPINION

SMITH, J.

In this ejectment the defendant does not controvert the plaintiff's title, but seeks to recover the value of his improvements and the taxes he has paid. He pleaded that he had entered upon the land in the year 1868 under a deed with covenants of general warranty, and which purported to convey an estate in fee simple; that the land was then in a wild and unimproved state, and that he had in good faith, believing that his title was perfect and his right to the possession indisputable, peaceably made improvements to the value of $ 2000, and had paid the annual taxes, amounting to $ 150. To the paragraph of his answer, setting up this partial defense, a general demurrer was sustained.

In his deposition, taken before the trial, the defendant testified as to the nature, extent and value of the improvements. This portion of his deposition was suppressed.

At the trial the defendant offered, but was not permitted, to read his deed for the purpose of showing that he went into possession under color of title. Against defendant's objection the court gave this instruction:

"The jury is instructed that the plaintiff is entitled to the rents and profits of the land in cultivation, as shown by the testimony, from the time the defendant commenced cultivating it up to the present time."

And the court refused to give the following instruction requested by defendant:

"If the land was wild and unimproved when defendant entered, the jury should not allow the rent value of the land as increased by the improvement."

By these several rulings (exceptions to which were properly saved) the circuit court affirmed that the betterment act of March 8, 1883 (Mansf. Dig., sec. 2644, et seq), did not affect the rights of the parties, and ought not to influence the result. The court may have been led to this conclusion by the fact that the plaintiff's title was of record when the defendant purchased the land from another party, or by the fact that the improvements were made and the present action had been brought before, the passage of the act, or by the fact that the plaintiff was an infant at the time the improvements were in progress.

But the constructive notice of an adverse title, which the law implies from the registry of a deed, is not sufficient to preclude the occupant from recovering for improvements, if he, in fact, purchased in good faith and under the supposition that he was obtaining a good title in fee. Actual notice is the test--that is, either knowledge of an outstanding paramount title, or of some circumstance from which the court or jury may fairly infer that he had cause to suspect the invalidity of his own title. Now, the mere fact that the defect in the title would have been disclosed upon an examination of the public records does not bring such knowledge home to him; for it is not inconsistent with his ignorance of the existence of such a deed, nor with an honest belief that his title is uncontested. Sedg. & Wait on Trial of Land Titles, sec. 696; Whiting v. Richardson, 31 Vt. 300.

The only requirements of the act are, that the occupant should have had peaceable possession, at the time the...