Mills v. Geer
| Decision Date | 12 July 1900 |
| Citation | 36 S.E. 673,111 Ga. 275 |
| Parties | MILLS v. GEER et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Under the act of December 21, 1897 (Acts 1897, pp. 79-81), in a suit to recover land, the defendant, who has bona fide possession of such land under adverse claim of title, may plead as a set-off the value of all permanent improvements bona fide placed thereon by himself, or other bona fide claimants under whom he asserts title, notwithstanding such improvements may have been made before the passage of the act. In case the legal title is found to be in the plaintiff and it should further be found that the value of such improvements at the time of the trial exceeds the mesne profits, while plaintiff is entitled to a verdict in his favor for the land, the defendant is also entitled to a recovery for the amount of excess of the value of such improvements over the mesne profits. The act, thus applied is not unconstitutional on account of being retroactive or ex post facto, or on account of its interfering with any vested right of the owner of the land.
2. Where plaintiffs in such an action have been in possession of or enjoyed the rents, issues, and profits from lands of the defendant, which they had received in lieu of the lands involved in the suit, the latter has a right to plead such benefits derived by plaintiffs as a set-off to their claim for mesne profits against him.
3. Prior to the act of 1889, embodied in Civ. Code, § 2545, a judge of the superior court had no authority to pass an order in vacation authorizing a guardian to sell or exchange the lands of his ward for reinvestment; and a deed made by the guardian, in pursuance of such an order, to a purchaser, was void.
4. A defendant in an action for the recovery of land, who claims credit for improvements made by his predecessor, is likewise liable for all mesne profits chargeable to such predecessor otherwise, if the defendant claims credit only for such improvements as he himself placed upon the land since his possession.
Lumpkin P.J., dissenting from ruling announced in first headnote.
Action by Claud W. and Steven B. Geer against Elijah Mills. Judgment for plaintiffs, and defendant brings error. Reversed.
J. J. Beck and W. C. Worrill, for plaintiff in error.
R. H. Powell & Son, for defendants in error.
Claud W. and Steven B. Geer brought complaint for land in Calhoun superior court against Elijah Mills. The tract involved in the suit was 107 3/4 acres, known as the "Geer Home Place," and plaintiffs claimed a one-half undivided interest therein as heirs at law of P. F. and L. M. Geer. Suit was for the recovery of this interest, and mesne profits of the land, alleged to be of the yearly value of $400. To this petition the defendant filed an answer, the important portions of which are embodied in amendments, in substance, as follows: On August 19, 1886, R. R. Blocker, as guardian of plaintiffs and their four brothers (it seems, he was duly appointed guardian after the death of their parents), presented to Hon. B. B. Bower, judge of the superior courts of the Albany circuit, his petition asking leave to exchange certain lands in Calhoun county, Ga., embracing the land sued for in this case, belonging to his wards, and in his possession and control as such guardian, for certain lands in Early county, Ga., owned by A. S. Mills. Upon the hearing of this application, on September 14, 1886, the judge granted and order authorizing the exchange prayed for. It seems, this order was granted in vacation. On September 20, 1886, a conveyance was made by said guardian, by virtue of the order granted by the judge, of certain tracts of land, among which was the one involved in this suit. In pursuance of the same order, A. S. Mills on the same date conveyed to the guardian, for the use of his wards, certain lands in Early county, Ga., amounting to about 500 acres. After the execution of the deeds, A. S. Mills went into the possession of the lands conveyed to him; and Blocker, guardian for plaintiffs and his other wards, took possession of the lands in Early county conveyed to him by Mills, and held possession of the same for the use and benefit of his wards until he died, and during that time received and used the rents, profits, and income from the lands for the use and benefit of plaintiffs and the other wards. After the appointment of the guardian, two of the wards (Walter and Ralph Geer) died, which left but four remaining heirs of the estate. These, including plaintiffs, continued in possession of all the lands in Early county conveyed by Mills to Blocker, their guardian, for some time. Two of them (Charles and Willie) after becoming of age sold and transferred their interest in the lands in Early county to certain purchasers. A. S. Mills conveyed the land involved in this suit to the defendant, Elijah Mills, executing to him a warranty deed to the same, and put him in possession thereof. The lands conveyed by Mills to the guardian for the benefit of his wards are alleged in the answer to have been of more value than the lands conveyed by the guardian to Mills; that the defendant had paid the purchaser from the guardian full value of the land in controversy; that this purchaser, A. S. Mills, accepted the conveyance from the guardian in good faith, believing he was getting a good title thereto, and defendant purchased the land in dispute in the best of faith, believing he was getting the best of title thereto. After A. S. Mills got the land in Calhoun county, he made large and valuable improvements thereon, and enhanced its value in the sum of $1,000, and defendant made on it, since his purchase, improvements of the value of $300, so that the land embraced in the suit was by these improvements enhanced in value to the aggregate amount of $1,300. The land in Early county conveyed to the guardian for his wards was in good condition for cultivation at the time of the conveyance,--woodland, well timbered, and timber valuable; 250 to 300 acres in good condition for cultivation. It had on it a comfortable dwelling, good tenant house, a good crib and stables, and a gin house, and was worth for rent at the time it was delivered to the guardian $250 to $300 per year. After the conveyance to Mills, and especially since the death of the guardian, this land had been greatly neglected; the buildings and improvements had not been kept in repair; gin house and other buildings torn down and removed, and those remaining allowed by neglect to go to decay; a large part of the timber cut from the land and sold, plaintiffs and their two brothers having received the benefits of such sale. Plaintiffs, before filing their suit, never made any offer to A. S. Mills to restore to him the possession of his said lands, but continued to hold the same, that it was their purpose not only to try to recover from defendant the land sued for, but also to try to hold the land that was conveyed by said A. S. Mills to their guardian. By reason of the sale of a large part of the lands conveyed by Mills to Blocker, guardian, in trust for plaintiffs and their brothers, it was charged that plaintiffs could not restore Mills to his former position. Attached to the answer was an itemized statement of improvements placed by the defendant and his predecessor in title on the land conveyed to Mills by the guardian. The answer prayed, first, that the sale and conveyance of the land sued for by Blocker, guardian, to the plaintiffs and their brothers, be confirmed, and plaintiffs be enjoined from prosecuting suit against the defendant, Elijah Mills, or from recovering said land; that, should it be held that plaintiffs have a right to recover, they first be required to account for the rents and profits from said lands in Early county conveyed by A. S. Mills to the guardian, and also that they be first required to pay to defendant the value of the improvements made upon the land sued for. Then follows a prayer for general relief. Plaintiffs below demurred to the above amended plea of the defendant upon general grounds, and this demurrer was sustained by the court, except as to the twelfth paragraph of the plea, reciting the fact that before filing the suit plaintiffs had made no offer to restore to A. S. Mills possession of his lands deeded by him to their guardian; and the court also struck the second prayer of the plea, in so far as it prayed that the value of improvements made by defendant in excess of the mesne profits be made a charge against the premises in dispute in the event it should be determined that plaintiffs had title to the land sued for. To this judgment of the court the defendant duly filed his exceptions pendente lite, and assigns error thereon in his bill of exceptions. The case then proceeded to trial before a jury, and they returned a verdict for the plaintiffs for the land in dispute, and for the sum of $93.75, rents and mesne profits therefrom. Defendant moved for a new trial, and assigns error on the judgment of the court overruling the same, on each and every ground.
1. There can be no question but that the act of December 21 1897 (Acts 1897, pp. 79-81), was intended to apply not only to improvements that might thereafter be erected upon land by bona fide purchasers thereof, but also to all such improvements of the character contemplated by the act which might have been erected by such defendant, or those under whom he claims, prior to its passage. In fact, the very first section of the act refers in express words to "all cases where an action has been brought for the recovery of land." Its terms, therefore, were applicable not only to suits for the recovery of land thereafter brought, but also to such suits as were pending in court at the time of the passage of the act, and...
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