Bodkin v. Arnold

• Citation: 35 S.E. 980,48 W.Va. 108
• Parties: BODKIN v. ARNOLD.
• Decision Date: 21 April 1900
• Court: Supreme Court of West Virginia

35 S.E. 980

48 W.Va. 108

BODKIN v. ARNOLD.

Supreme Court of Appeals of West Virginia.

April 21, 1900

Syllabus by the Court.

1. In an action of trespass for mesne profits, if the defendant at the time of the inception of the cause of action had knowledge of the plaintiff's title, although he honestly believed that he held the superior legal title, the measure of damages is not the actual receipts, but is the fair annual rental of the property, with legal interest, less the taxes paid by the defendant.

2. In such action the defendant is not entitled to offset his improvements against the rent, if at the time they were made he had knowledge of the plaintiff's title, although he in good faith believed his own title to be the better, in point of law.

3. If in addition to the rent, the plaintiff seeks to recover damages for waste occasioned by the failure of defendant to make proper, tenantable repairs, and his abuse and misuse of the property, the improvements made by the defendant in the nature of general repairs should be taken into consideration in estimating the general depreciation in the value of the property through fault of the defendant.

4. The defendant is not liable for natural wear and tear resulting from the lapse of time and the proper use of the property but only for the damages occasioned by his negligence misuse, or abuse.

5. Where the action is not founded on the want of probable cause and maliciousness, punitive damages are not recoverable, and evidence tending to establish the same is not admissible.

6. The true measure of damages is compensation for the actual loss sustained by the plaintiff in being deprived of the use of his property, and speculative profits, founded on an exaggerated notion of the real value of the property, are not recoverable. Evidence tending to establish such speculative profits is inadmissible, as it may mislead the jury in arriving at the fair rental value of the property.

Error to Circuit Court, Lewis county; W. G Bennett, Judge.

Action by John P. Bodkin against George J. Arnold. Judgment for plaintiff. Defendant brings error. Reversed.

Edward A. Brannon, for plaintiff in error.

G. H. Morrison, Dulin & Hall, and W. W. Brannon, for defendant in error.

DENT J.

John P. Bodkin, surviving cotenant and heir of George Bodkin, deceased, instituted his suit in the circuit court of Lewis county to recover the mesne profits accruing to him in the case of Bodkin v. Arnold, 45 W.Va. 90, 30 S.E. 154, arising out of the case of Boggs v. Bodkin, 32 W.Va. 566, 9 S.E. 891, 5 L. R. A. 245, and recovered judgment on the verdict of a jury for $7,000. The facts will be found fully set out in the foregoing cases, and it is not necessary to repeat them at length. The question now presented to the court is nothing more than the true measure of damages controlling a recovery in cases of this character. On the part of the defense it is insisted that actual receipts is the true measure, while the plaintiff insists that the rental value on a speculative basis, augmented by waste for failure to keep in repair, and neglect and abuse of the property, without deduction for improvements, is the true measure. The defendant's position is wrong, for the reason that he was at no time ignorant of plaintiff's claim of title, but was entirely cognizant thereof. To be a bona fide purchaser or possessor, so as to make him answerable only for actual receipts, the defendant must not only believe his own title to be good, but he must be ignorant of the existence of plaintiff's claim of title. If he has notice thereof, or of facts that put him on inquiry, he is not a bona fide holder, within the meaning of the law. Cain v. Cox, 23 W.Va. 594; Id., 29 W.Va. 258, 1 S.E. 298; Haymond v. Camden, 22 W.Va. 180; Lynch v. Andrews, 25 W.Va. 751; Dawson v. Grow 29 W.Va. 333, 1 S.E. 564; Hall v. Hall, 30 W.Va. 779, 5 S.E. 260; Williamson v. Jones, 43 W.Va. 562, 27 S.E. 411, 38 L. R. A. 694. In these cases it is finally settled that plaintiffs belief, to be bona fide, must be founded on ignorance of facts, and not ignorance of law. In Williamson v. Jones, cited, it is held that "one having notice of facts rendering his title inferior to another, who by mistake of law regards his title good, cannot claim for permanent improvements." The same rule that deprives a defendant of his claim for permanent improvements requires him to pay the fair annual rental of the property, instead of his actual receipts. The defendant had actual notice of all the facts rendering his title inferior to the plaintiff's and because he ever so honestly believed that his title was the superior in law does not excuse him from paying the plaintiff full compensation for keeping him out of possession of his land. That compensation is a fair annual rental of the property in the condition and for the purposes for which it was used at the time plaintiff was dispossessed, together with damages for waste committed by failure to repair and misuse and abuse of the property while in the possession of the defendant. As an original proposition, we might be inclined to hold that, so far as the improvements are concerned, the legislature, when it used the language "believed to be good," meant a well-founded belief, either in law or fact, notwithstanding the maxim that "ignorance of law excuseth no one"; for if a person, in the honest belief that he has the superior title, improves the subject-matter, he ought, in good conscience, to be entitled to recover the enhanced value thereof. If not, his property is given to another, without compensation, for the reason that he is not so learned in the law as to be able, in a case involving intricate legal propositions, to foresee the final determination of such propositions by a court of last resort, not always infallible in its conclusions. Pending the litigation he cannot improve without risking the loss of the expense thereof, and he dare not let the property remain idle; for he may be made liable for the rent and damages for neglect in not keeping it in repair, and permitting it to go to waste. He can avoid trouble by surrendering the property, but, sustained by the advise of counsel learned in the law, he believes his title to be good, and honestly hopes for a favorable decision from the courts, only to have such hope finally dissipated, in having the property, including its enhanced value, taken away from him and given to his successful opponent, it may be, by a legal technicality. The case of Williamson v. Jones, cited, settles the law, beyond dispute, to the contrary; reaffirming numerous other decisions of this court to the same effect.

From his standpoint, the plaintiff presented his evidence and instructions, which were objected to by the defendant, and the defendant, in turn, tendered his, which were rejected by the court. The plaintiff's first and second instructions are as follows: "(1) The court instructs the jury that, as bearing on the question of honest good faith, they may consider the reservation as to the Merchant title in the decree in the case of W. H. Boggs v. Bodkin and others; and, if said Arnold failed to make proper investigation and ascertainment as to the validity of the Merchant title mentioned in said reservation, his failure to do so may be taken into account, as bearing on the question of Arnold's good faith. (2) The court instructs the jury that they should not allow the defendant anything for improvements, unless such improvements were permanent and valuable, and further, also, unless such improvements were made at a time when there was reason to believe the title good." It was not error to give these instructions, under the law, for the reason that it abundantly appears that the defendant had actual notice of plaintiff's title, by the ejection suit, and therefore he could not be regarded to be a holder of the land in good faith, although he believed his title to be the superior in law. The facts were all known to him, and he only failed in his law.

The plaintiff's fourth instruction is as follows, to wit ...