an appeal will not be allowed where said judgment is affirmed.15

§ 2173. Color of title-Belief that title is good-Good and bad faith-When improvements allowable.16-The value of improvements made in good faith may be recovered." And although they are made after the ejectment suit is brought this does not negative the good faith required under the statute to justify their allowance.18 So the value of improvements can be recovered by one purchasing the land under the belief that his title is good, and such belief is a question of fact.19 So permanent improvements, in so far as they enhance the value of the land, should be allowed when made by one holding the land as his own under a belief that his title was good," and where the entry was made in good faith under a claim of title, and the improvements are for the greater part of a lasting character and beneficial, a recovery may be had therefor." So permanent improvements made under color of title in good faith by defendants, or those under whom he claims, can be availed by way of counterclaim, and a paper title is not necessary to bring defendant within such statutes." And ordinarily, one holding land adversely, under color of title and in good faith, or under the belief that his title is good, and who makes permanent, valuable and beneficial improvements, is entitled to recover their value, so far as they enhance the value of the land, where he has also obtained the title without fraud.

23

15 Re Gleeson's Est., 192 Pa. 279; 44 W. N. C. 321; 43 Atl. 1032, aff'g 8 Pa. Dist. R. 46.

16 See sec. 2175, herein.

22 Pendo v. Beakey, 15 S. D. 344; 89 N. W. 655; Comp. Laws, sec. 5455.

23 See cases and statutes cited

17 Boyd v. Miller, 22 Tex. Civ. throughout this section where perApp. 165; 54 S. W. 411.

18 Dorer v. Hood (Wis. 1902), 88 N. W. 1009; Rev. Stat. 1898, sec. 3096.

19 Rutland R. Co. v. Chaffe, 72 Vt. 404; 48 Atl. 700; Vt. Stat. secs. 1500, 1505.

20 Williamson v. Jones, 43 W. Va. 562; 27 S. W. 411; 38 L. R. A. 694.

21 Jones v. Merrill, 113 Mich. 433; 4 Det. L. N. 338; 71 N. W. 838.

manent improvements have been made, in good faith, by the defendant, or those under whom he claims, while holding, under color of title, adversely to the plaintiff, the value thereof must be allowed to the defendant, in reduction of the damages of the plaintiff, but not beyond the amount of those damages. N. Y. Code Civ. Proc. sec. 1531.

24 See Avery v. Royer, 4 Ohio Dec.

27

28

26

25

Within this rule, the value of improvements may be recovered by one holding under color of a bona fide purchase; by one who takes possession under a contract of sale, wherein the vendor's agent had agreed to take back the land; by one who has made permanent improvements where he has had adverse possession in good faith for a certain time where the statute so provides and even though under another enactment a grantor and his heirs are bound by an unrecorded deed, and also by an heir who after inquiry as to title takes and holds possession under a belief that the property is his; by one who has no knowledge that the land belongs to another and who has exercised due diligence to ascertain the facts; by one who holds by purchase under a quitclaim deed without knowledge of an existing judgment on the land against his grantor; by one who takes the land under a deed of gift from his father believing that he is entitled thereto;" by a purchaser from the donee in possession under a parol gift of the land, even though it constitutes a part of a homestead and is void; by a purchaser at a judicial sale set aside without his fault; by one claiming as against a claimant under a sheriff's sale, under purchase from a judgment debtor after a sheriff's sale, but before confirmation; by one who holds by purchase made in good faith at a foreclosure sale, under a belief that he has a good title; by one claiming as a purchaser from commissioners for the sale of forfeited estates; by a purchaser under an invalid tax deed,

33

35

464; 2 Clev. L. R. 201; Stat. 1878, p. 766.

25 Heet v. Bush, 3 Johns. (N. Y.) 512.

26 Bond v. Wilson, 129 N. C. 325; 40 S. E. 179. See secs. 1778-1780, herein as to sales of realty and improvements.

27 Rowan v. Rainey (Tex. Civ. App. 1901), 63 S. W. 1031, under Rev. Stat. art. 5277, allowing improvements; Rev. Stat. art. 4640, as to unrecorded deed.

28 Daugherty v. Yates, 13 Tex. Civ. App. 646; 35 S. W. 937.

29 Cleland v. Clark (Mich. 1900), 81 N. W. 1086; Comp. Laws, sec. 10,995.

31

29

31

36

30 White's Succession, 51 La. Ann. 1702; 26 So. 428.

31 Morris v. Wells (Tex. Civ. App. 1901), 66 S. W. 248.

32 Thompson v. Buckner, 19 Ky. L. Rep. 431; 40 S. W. 913.

33 Avery v. Royer, 4 Ohio Dec. 464; 2 Clev. L. R. 201; Stat. 1878, p. 766.

3+ Stevenson v. Roberts (Tex. Civ. App. 1901), 64 S. W. 230.

35 Robinson v. Munsory, 1 John. (N. Y.), 277.

36 Croskery v. Busch, 116 Mich. 288; 4 Det. L. N. 1121; 74 N. W. 464.

37

38

or a tax deed void on its face, and the fact that possession was held under a void tax title does not necessarily show that improvements were not made in good faith; by one who has taken possession under a tax deed without full compliance with certain statutory requirements, at least this does not evidence bad faith as a matter of law although the question of good faith is a matter of fact; and by a person holding under a void will. A person is also within the rule where he has entered into possession and retained it in good faith even though he might have discovered that his grantor's executors had no right to convey under the terms of the will." And the fact that an investigation of the records would have disclosed that the guardian's sale under which the defendant deraigned title was void, is not such mala fides as to preclude a recovery for improvements.2

45

§ 2174. Color of title-Belief that title is good-Good and bad faith—When improvements not allowable."—Where the statute only allows betterments to defendant who supposes he has a good title in fee and it proves defective, a purchaser who fails to pay his vendor is not within the terms of the enactment." And if the defendant occupies under a void decree he cannot recover for improvements. Nor are improvements made by a tenant pending a writ of entry allowable ; 6 nor is a holding under an invalid certificate of homestead entry a holding under color of title under the statute; nor is a minor's homestead claim in the homestead of her mother sub37 Parker v. Vinson, 11 S. D. 381; | 78 N. W. 554; How. Ann. Stat. sec. 77 N. W. 1023; Comp. Laws, sec. 7836. Examine next section. 5455. 42 Hicks v. Blakeman, 74 Miss.

38 Netzorg v. Geren (Tex. Civ. 459, 483; 21 So. 7, 400, under statApp. 1901), 62 S. W. 789. ute. Examine next section.

39 Meadows v. Osterkamp, 13 S. D. 571; 83 N. W. 624; Comp. Laws, sec. 5455. See Parker v. Vinson, 11 S. D. 381; 77 N. W. 1023; Rev. Codes of 1877; D. Laws, 1868-69, ch. 15, sec. 6.

43 See sec. 2175, herein.

44 Walker v. Arnold, 71 Vt. 263; 44 Atl. 351.

45 Finch v. Strickland (N. C. 1903), 43 S. E. 552; Code, sec. 473.

46

6 Demelman V. Bristol (Mass.

40 Bloom v. Strauss, 70 Ark. 483; 1901), 60 N. E. 478. 69 S. W. 548.

41 Petit v. Flint & P. M. R. Co., 119 Mich. 492; 5 Det. L. N. 889;

47 Whitcomb v. Provost, 102 Wis. 273; 78 N. W. 432; Rev. Stat. 1878, sec. 3096.

48

ject to a claim of defendant for improvements; nor is the value of permanent improvements recoverable when made on the faith of an invalid tax title upon premises held by the mother as a homestead.49 And where a deed from the owner to a third person was on record the improvements made thereafter by defendant were disallowed. Nor can a recovery be had where the defect of title was apparent of record and would have been discovered except for negligence or incompetency of those employed to examine the record.51

53

50

52

§ 2175. Defendant's notice or knowledge of plaintiff's claim as precluding recovery for improvements. Improvements made after notice of plaintiff's claim to the property are not made in good faith. But in order to defeat a claim for improvements under the statute, the notice of adverse title must be an actual and not a constructive one. It is also decided, however, that the notice may be actual or constructive, and that if the occupant have notice of facts rendering his title inferior but by mistake of law considers his title good, he cannot recover for his improvements even though they are permanent. And where the statute allows recovery for improvements made in good faith before notice of adverse title, if defendant had knowledge of the adverse title or possessed ample means of knowledge he is within the statute as to actual notice.56 And if defendant in trespass to try title has had notice by letter that the land belongs to plaintiff, he is not entitled to recover for improvements thereafter made where he also holds under a void title. Again, if improvements are made with a

55

48 Bloom v. Strauss, 70 Ark. 483; 69 S. W. 548.

49 Allen v. Russell, 30 Ohio St. 137; 40 Ohio L. J. 388; 52 N. E. 121; Ohio Rev. Stat. sec. 5786.

50 Donaldson v. Rall, 14 Tex. Civ. App. 336; 37 S. W. 16.

51 Anderson v. Reid, 14 App. D. C. 54; 27 Wash. L. Rep. 66. See Texas & N. O. R. Co. v. Barber (Tex. Civ. App. 1902), 71 S. W. 393.

52 See secs. 2173, 2174, herein.

54 Kugel v. Knuckles, 95 Mo. App. 670; 69 S. W. 595; Rev. Stat. 1899, sec. 3072.

55 Williamson v. Jones, 43 W. Va. 562; 27 S. E. 411; 38 L. R. A. 694. 56 Kugel v. Knuckles, 95 Mo. App. 670; 69 S. W. 595; Rev. Stat. 1899, sec. 3072. As to notice precluding recovery for improvements under Rev. Stat. 1899, sec. 3080, see Marlow v. Liter, 87 Mo. App. 584.

57 Texas & N. O. R. Co. v. Barber

53 Wilcoxson v. Howard (Tex. Civ. | (Tex, Civ, App. 1902), 71 S. W. 393. App. 1901), 62 S. W. 802.

59

knowledge of plaintiff's rights there can be no recovery therefor.58 And if one knows that he has no title to the land, and the improvements made are of no benefit to the owner, there can be no recovery for their value. So where the improvements were made against the vendor's protest, and the title is adjudged in his favor, the question of good faith is precluded against the purchaser.

60

63

§ 2176. Improvements-Computation of value-Basis of estimation. In computing the value of improvements in cases where such value is recoverable, the basis of estimation is the enhanced or increased value of the land by reason thereof, or the actual relative value of the real estate with and without such improvements, or the extent of the benefits accruing to the property by permanent improvement," or the value of the improvement itself at the time of recovery against the defendant, and not the costs of making them or the expenditures upon the land, nor their peculiar value to the occupant, nor their worth to the plaintiff for the particular purpose for which he intends to use the property."

65

66

58 Willis v. McKinnon, 79 App. | N. W. 554; How. Ann. Stat. sec. Div. 249; 79 N. Y. Supp. 936, aff'g 7836. 75 N. Y. Supp. 770; 37 Misc. 386.

59 People, Forest Commission, v. Campbell, 35 App. Div. 103; 54 N. Y. Supp. 725.

60 Bell v. Wright (Tex. 1901), 60 S. W. 873.

61 See sec. 2180, herein.

62 Bourne v. Odam, 17 Ky. L. Rep. 696; 32 S. W. 398; Lothrop v. Michelson (Neb.), 63 N. W. 28; Harman v. Harman, 54 S. C. 100; 31 S. E. 881; Williamson v. Jones, 43 W. Va. 562; 27 S. E. 411; 38 L. R. A. 694. See Conlan v. Sullivan, 110 Cal. 624; McMurray v. Day, 70 Iowa, 671; Fletcher v. Brown, 35 Neb. 670; 53 N. W. 577; Fisher v. Eddington, 85 Tenn. 23; Bibber v. Williamson, 37 Fed. 756.

63 Petit v. Flint & P. M. R. Co., 119 Mich. 492; 5 Det. L. N. 889; 78

64 Bacon v. Thornton, 16 Utah, 138; 51 Pac. 153.

65 Lighter v. Speck (Va.), 28 S. E. 326.

66 Bourne v. Odam, 17 Ky. L. Rep. 696; 32 S. W. 389; Petit v. Flint & P. M. R. Co., 119 Mich. 492; 5 Det. L. N. 889; 78 N. W. 554; How. Ann. Stat. sec. 7836; Hicks v. Blakeman, 74 Miss. 459, 483; 21 So. 7, 400 (the cost is not necessarily the test); Lothrop v. Michelson (Neb.), 63 N. W. 28; Harman v. Harman, 54 S. C. 100; 31 S. E. 881; Bacon v. Thornton, 16 Utah, 138; 51 Pac. 153; Lighter v. Speck (Va.), 28 S. E. 326. But see sec. 2180, herein.

67 Petit v. Flint & P. M. R. Co., 119 Mich. 492; 5 Det. L. N. 889; 78 N. W. 554; How. Ann. Stat. sec. 7836,