Kian v. Kefalogiannis

• Citation: 163 S.E. 535
• Court: Supreme Court of Virginia
• Decision Date: 24 March 1932
• Parties: KIAN. v. KEFALOGIANNIS.

163 S.E. 535

KIAN.

v.KEFALOGIANNIS.

Supreme Court of Appeals of Virginia.

March 24, 1932.

EPES, J., dissenting.

Error to Circuit Court of City of Hopewell.

Action by Vasileois N. Kefalogiannis against Wallis Kian, in which defendant, after judgment for plaintiff, was permitted to file petition praying for compensation for permanent improvements. To review an adverse judgment, defendant brings error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS, and BROWNING, J J.

J. Toomer Garrow, of Hopewell, for plaintiff in error.

Archer L. Jones, of Hopewell, for defendant in error.

HUDGINS, J.

This was an action of ejectment instituted by Vasileois N. Kefalogiannis in the circuit court for the city of Hopewell against Wallis Kian. All questions of law and fact were submitted to the court, without the intervention of a jury, and judgment rendered in favor of the plaintiff. Thereupon the defendant asked leave, and was permitted, to Hie a petition praying compensation for permanent improvements made on the premises by him and those under whom he claimed. Issue was joined on this petition. Again a jury was waived and the matter submitted to the court, which held that no compensation should be allowed for improvements and dismissed the petition. From the above orders the defendant is here complaining.

The defendant below, the plaintiff in error here, assigns three errors. Assignments 1 and 2 deal with the ruling of the court on the trial of the issue joined by the pleadings in the action of ejectment. Final judgment on this issue was entered on December 12, 11)28, and in the same order execution on the judgment was suspended and the defendant was given two weeks in which to file his petition setting forth his claim for compensation. Within the specified time the petition was filed, but final judgment denying compensation and dismissing the petition was not entered until February 11, 1930.

While the two actions are connected, they are separate and distinct proceedings. Neither the filing of the petition asking for compensation for improvements nor the suspension of execution of the judgment had the effect of extending the six months' limit within which a writ of error to the judgment in the action of ejectment might be sought. Hence we cannot consider these two assignments.

The third and last assignment of error is to the action of the court in refusing to allow compensation for improvements.

The pertinent facts are that: The plaintiff in 1916, under a deed duly recorded, was the owner of a vacant lot in the city of Hopewell. In January, 1919, the commonwealth became the purchaser of this lot for nonpayment of the 1917 taxes. M. D. Aldrich filed an application to purchase the lot from the commonwealth and on August 17, 1921, received a deed therefor from the clerk of the corporation court. By deed dated September 19, 1922, Aldrich conveyed the lot to Peter Petroff, who erected a one-story frame building thereon.

Petroff died and a suit was brought in the corporation court of the city of Hopewell to settle his estate. J. E. Haywood, administrator, acting under a decree of the court in that cause, sold and by deed dated January 23, 1926, conveyed the lot, with improvements, to Wallis Kian. All of these deeds were duly recorded.

Wallis Kian, subsequent to his purchase, made other improvements on the lot. In October, 192S, the plaintiff instituted an action of ejectment, in which action the court held that the tax deed to M. D. Aldrich was void, and on December 12, 1928, entered the judgment mentioned above.

The court does not state the specific ground upon which it held, the tax deed void. The plaintiff in his reply brief recites numerous irregularities appearing on the public records in the clerk's office and not appearing on the face of the deed, and many omissions from the deed of circumstances appearing in the clerk's office which render it void.

Without attempting to enumerate all of the defects claimed, it is apparent from the deed itself that it contains no reference to the report of the city treasurer to the corporation court of the sale of this lot to the commonwealth, or of the confirmation of such sale by the court. "Both of these things were required, and both are circumstances which, if they occurred, appear in the clerk's office, and they are important particulars relating to the sale." Roller v. Armentrout, 118 Va. 173, 86 S. E. 906, 907. The omission of these recitals from a tax deed is fatal to its validity. Coles' Heirs v. Jamerson, 112 Va. 311, 71 S. E. 618, 50 L. R. A. (N. S.) 407; Zimmerman Co. v. Dey, 121 Va. 709, 93 S. E. 597.

The defect in the defendant's title was a matter of record, and notice of such defect was imputable to him. Such being the fact, is the defendant entitled to any allowance for permanent improvements made onthe premises while he or his predecessor in title was in possession and before either had actual notice of the plaintiff's claim?

He was not entitled to any allowance under the general rule of the common law. The defendant claims that he comes within the provision of Code, § 5-101. There has been no change in this statute since the adoption of the Code of 1S49 (see page 5G3). Under its terms this court has repeatedly held that a person with notice, actual or constructive, of a defect in his title is not entitled, upon being dispossessed by the rightful owner, to recover compensation for permanent improvements made on the premises. Means of notice, with the duty of using them, is equivalent to actual notice. Smith v. Woodward (Story v. Woodward) 122 Va. 356, 94 S. E. 916, 922; McDonald v. Rothgeb, 112 Va. 749. 72 S. E. 692, 693, Ann. Cas. 19101:, 63; Nixdorf v. Blount, 111 Va. 127, 68 S. E. 258, 259; Fulkerson's Adra'x v. Taylor, 102 Va. 314, 46 S. E. 309; Effinger v. Hall, 81 Va. 94.

The revisors of the Code of 1887 cited the case of Eilinger v. Hall, supra, under section 2760, now 5491, wherein is found the following significant language:

"It is not sufficient to say that by their improvements the property has been enhanced in value. The appellees cannot be charged with any part of the cost of those improvements, if the same were made by the appellants, or those under whom they claim, with notice of the appellees' claim; or, in other words, with notice of the infirmity in their own titles. * * * And 'no principle is better established than that a purchaser must look to every part of the title which is essential to its validity.' Brush v. Ware, 15 Pet. 93 . * * *

"In Burwell v. Fauber, 21 Grat. [62 Va.] 446, it was held that a purchaser 'is bound not only by actual but also toy constructive notice, which is the same in effect as actual notice, ' and that 'he has no right to shut his eyes or his ears to the inlet of information, and then say he is a bona fide purchaser without notice."

"The language of Mr. Justice Strong, in Cordova v. Hood, 17 Wall. 1 , so often quoted with approbation by this court, is peculiarly appropriate to the present case. He said: 'Whenever inquiry is a duty, the party bound to make it is affected with knowledge of all which he would have discovered had he performed the duty. Means of knowledge, with the duty of using them, are, in equity, equivalent to knowledge itself.' See, also, Long v. Weller, 29 Grat. [70 Va.] 347; Wood v. Krebbs, 30 Grat. [71 Va.] 70S; Coles v. Withers. 33 Grat. [74 Va.] 1S6; Lamar's Ex'r v. Hale, 79 Va. 147; Hum v. Keller, 79 Va. 415; Wood v. Carpenter, 101 U. S. 135 ."

Judge Whittle, speaking for this court in the case of McDonald v. Kothgeb, supra, said:

"With respect to the matter of allowance for improvements, we are of opinion that the question involved is ruled by the conclusion reached by this court in the analogous case of Nixdorf v. Blount, 111 Va. 127, 68 S. E. 258, and cases cited in the opinion.

"It seems to us that to hold that a purchaser can close his eyes to his record title and recover for improvements, on the theory that 'there was reason to believe the title good' (Va. Code 1904, § 2763), would be to set a premium on negligence and nullify our registry statutes.

"It was said in Bodkin v. Arnold, 48 W. Va. 108, 109, 35 S. E. 9S0, 981, that 'belief, to be bona fide, must be founded in ignorance of facts, and not ignorance of law.' And ignorance of fact cannot be predicated of a case where the purchaser is affected with constructive notice.

"These views are decisive of the case.

* * *“

And again, in Nixdorf v. Blount, supra, the same judge in referring to the case of Fulkerson's Adm'x v. Taylor, said: "We held that 'a purchaser cannot claim that he put improvements upon land in good faith, believing that he had good title, when the records disclose a defective title.' "

The cases so construing the statute are cited by the revisors of the 1919 Code, and in the authorized annotations to this section (5491) the following pertinent statement is made:

"A person with notice, actual or constructive, of infirmity in his title, cannot, upon recovery of such lands by rightful owners, obtain a compensation for improvements made thereon. Means of notice, with duty of using them, is equivalent to actual notice. Effinger v. Hall, 81 Va. 95." (Code 1919, p. 2394).

Finally, Judge Burks, who prior to his becoming a member of this court was one of the revisors of the 1919 Code, in January, 1918, before this Code was adopted, speaking for the court in the case of Smith v. Woodward, supra, said:

"The statute allowing recovery for improvements restricts it to one 'holding the premises under a title believed by him

* * * to be good.' Code, § 2760 [now 5491]. This court has held that this section has no application to one who is not a bona fide purchaser, and that a person with notice, actual or constructive, of infirmity in his title cannot recover for improvements."

It thus appears that the erudite revisors of the Code of 1919, with full knowledge of the construction this court had repeatedly placed on the...