Martin v. Tatkinson

• Decision Date: 31 August 1849
• Docket Number: No.45.,45.
• Citation: 7 Ga. 228
• Parties: George W. Martin, plaintiff in error. vs. Tolleson T.Atkinson, defendant.
• Court: Georgia Supreme Court

7 Ga. 228

George W. Martin, plaintiff in error. vs. Tolleson T.Atkinson, defendant.

No.45.

Supreme Court of the State of Georgia

AUGUST TERM, 1849.

In Equity, in Pike Superior Court. Tried before Judge Floyd, February Term, 1849.

George W..Martin, by bill filed in Pike Superior Court, alleged, that in January, 1841, he purchased of Tolleson T. Atkinson a tract of land lying in Pike county, for which he took a bond for titles, and in payment, made a deed to a tract of land in Dooly county, and gave his notes for $500, due December, 1813. Soon after the trade, Martin being about to place improvements on the land, it was levied on by fi. fa. against Atkinson; Martin then demanded a rescission of the contract, but upon the promise of Atkinson to remove the incumbrance, and in the event the land was sold, to pay for all improvements, Martin proceeded to place improvements on the land to the value of $400; subsequently the land was sold under the fi. fas. and purchased by one Mangham, who sold to Neal, who re-sold to complainant for $400.

The bill prayed a reconveyance of the Dooly lot, the cancellation of the notes for $500. and a reasonable compensation for the improvements on the land.

Atkinson in his answer admitted the contract as alleged, denied the agreement to pay for the improvements, and insisted that Martin has suffered damages only to the amount paid to Neal.

By a supplemental answer, (see 5 Ga. Eep.) he denied that the Dooly lot was any part of the consideration of the land in Pike. On the trial, the complainant offered to prove, by witnesses who had seen a lot in Dooly county, its identity with the lot in dispute, from what was said by the neighbors and the tenant on the lot. The Court rejected the testimony, and complainant excepted.

John Neal testified, that out of kindness to Martin, he bought the land from Mangham, who purchased it at Sheriff's sale; he took the land at Mangham"s bid—$245—and sold it to Martin for $400: Mangham requested him "not to deprive Martin of his home; there was no collusion to buy in the land.

Other evidence was before the jury, unnecessary to be repeated.

The Court charged the Jury, "that they might give to the complainant redress for all the injury he had sustained by non-compliance with the contract; that complainant had alleged that he had purchased the land in Pike from defendant, and gave a lot in Dooly and notes for $500, but does not allege that he ever paid the notes. He further alleges that the land in Pike was afterwards levied on and sold by virtue of an execution against the defendant; that he has made large and valuable improvement, and prays a rescission of the contract. It turns out that upon the sale of the land in Pike by the Sheriff, the complainant is permitted to retain the land upon paying Mr. Neal a certain sum of money. We are called on to do equity between these parties; you will inquire into the question of the consideration, and particularly, whether the complainant has paid for it, and so frame your decree as not to compel the defendant to pay for the loss of title to land for which complainant may not have paid. If you believe he has never paid the purchase money, you may decree the amount of injury he may have suffered to be credited on the notes given for the land, and if the injury was sufficient to cover the whole of the notes, you may decree that they be delivered up to be cancelled."

To this charge complainant excepted, and the questions made upon it in this Court were—

1st. Whether the Sheriff's sale amounted to a vacation of the contract as to the land?

2d. Whether the amount paid by Martin to Neal was the proper measure of damages for the injury done him by the sale?

3d. Whether Martin was entitled to recover compensation for the improvements put upon the land?

W. W. Arnold, for plaintiff in error.

To divest our minds of a hindrance which appears to have haunted the imagination of the Judge below—though it really appears to me to have little or no connection with this case, let us see whether the oft repeated dogma that "Equity will not decree compensation for the improvements put on lands by him, bona fide, in favor of a bona fide possessor against the true owner, " does not fall under the description of "law taken for granted, " as was remarked by Lord Denman, and quoted by Judge Lumpkin in Cramming's case, 3 Kelly, 469. We will leave out of view fraudulent possessors and squatters, as not entitled. 4 Peters' U. S. Pep. 101. Hut is it law, that the buna fide possessor of lauds cannot, on a bill by himself, recover pay for improvements put on the land in good faith on a defect of his title out of the true owner under any state of circumstances? Can he not, out of his vendor, recover more than mere nominal damages? These are serious questions, and about them legal minds have expressed different opinions; but 1 doubt whether they were ever solemnly decided, either in England or in this country.

Chalcellor Kent in his Commentaries, says: "There is no adjudged case professing to be grounded on Common Law principles, and declaring that the occupant of land was, without any special contract, entitled to pay for his improvements as against the true owner, where the latter was not chargeable with having intentionally laid by and concealed his title." 2 Kent, 335. This implies that in such a case as laying by and concealing title, the occupant might get pay, as well as where there was a special contract therefor. But at best, it is a mere negative opinion or proposition: "there is no adjudged" case that he can. This may be true that there is no case that he can, yet we apprehend that it is equally true that there is no adjudged case that he cannot.

In speaking of the reason of the passage of the Statutes in several of the Stales on this subject, he says: "There were, however, peculiar and pressing circumstances which were addressed to the equity of the law given, and led to their passage." Ib.

"No man ought to be entitled to it unless he entered and improved, in a case which appeared to him, after diligent and faithful. inquiry, to be free from suspicion." Ib.

Judge Story in 2 Story's Eq. §799, b, says: "It has been sometimes thought, that as a matter of justice, Courts ought to go further, and in favor of a bona fide possessor of lands whose title is defective, decree compensation for the improvements put on in good faith against the true owner who asserts his title to it." "But Courts of Equity have never gone to this extent, but have simply confined themselves to the administration of the equity incases where their aid has been invoked by the owner in support of his equitable claims." "They have never enforced, in a direct suit by the bona fide possessor, his claim to meliorations." &c. This appears also to he a mere negative opinion, but it impliedly goes a little farther than Chancellor Kent.

Chancellor Walworth in Putnam vs. Ritchie, 6 Paige, 390, 405, says: "This principle of natural equity is constantly acted upon in this Court, &c, &c. I have not been able to find any ease, however, in England or this country, wherein the Conn has assumed jurisdiction to give relief to a complainant who has made improvements upon land, the legal title to which was in defendant, where there has been neither fraud nor acquiescence on the part of the latter, after he has knowledge of his rights, " &c.

Now this implies that there are cases giving the occupant redress in cases of fraud and acquiescence. But still it, too appears negative. That there is no case that he can, is not equivalent to a case that he cannot.

It is clear that he could, by the Civil Law, and by the laws of those countries deriving their jurisprudence from it. See Inst. Justinian, lib. 2, tit. 1, §§30, 35. 1 Martin's Law Rep. 405. 20 Ib. 609, 615, 620. Civil Code, livre 3, tit. 6, ch. 4, §3, §1, art. 1634. 2 Story's Eq. §799, b, §1239.

It was intimated to be the law of England and of this country, in 3 Atk. R. 134. 2 John. Cases, 441. 1 Lim. & St. 552. 6 Madd. R. 2. 8 Price's R. 518. 8 Wheat. R. 1, 77. 1 Younge & Col. 427. 1 Johns. Ch. R. 150, 285, '7.

Now, it is admitted by Chancellor Walworth, that there is "a natural equity'' in favor of the doctrine of compensation in such cases, and by Chancellor Kent, that "there were peculiar and pressing circumstances which are addressed to the equity of the law giver" in his favor, and by Judge Story, that "it is sometimes thought that Courts ought to go farther" than it is asserted they have on this subject. They have gone so far as to allow compensation to the occupant for his improvements, against the owner, whenever ho sued, or there was fraud on his part, or acquiescence by him, after knowledge of his rights. 6 Paige, 390, 405, sup. 200. It does not appear to have ever been decided affirmatively that he could not, whenever he, the improver, sued therefor; and where, we ask, is the difference in principle between a plaintiff and defendant, as to the equity? If it lies in favor of a defendant for defence, when sued, why would it not equally lie on a bill by him therefor? It would appear that in principle, there is no differences See opinion of Supreme Court by Nisbet, J. in case of Davis et al. vs. Smith et al. 5 Ga. R. 288, '9. But we do not contend for the doctrine in its fullest extent, and we think there are many reasons for its limited restriction. Perhaps the cases show its full extentwhich is asserted in Putnam vs. Ritchie, that it holds good in all cases of fraud or unreasonable acquiescence.

But to return from this discussion to our case. And before proceeding, we will merely premise the following axioms as ancillary to its proper elucidation, viz.:

Multiplicity of suits ought to be avoided, and the bill aided, 4 Ga. E. 592. The eviction here was sufficient. 3 Kelly, 460. 4 Ga. E. 593, 606, '8. Cancellation of void instruments is the province of Equity. 2 Story's Eq. §§700, 703. Neal, the purchaser at Sheriff's sale, is not to...