Sweeten v. King

225 S.E.2d 598 (1976)

29 N.C. App. 672

Louise King SWEETEN and husband, Calvin W. Sweeten, Sr. v. N. A. KING et al.

No. 7517SC1038.

Court of Appeals of North Carolina.

June 16, 1976.

*600 Bethea, Robinson, Moore & Sands, by D. Leon Moore, Reidsville, for the petitioners.

Griffin, Post, Deaton & Horsley, by Hugh P. Griffin, Jr., Reidsville, for the respondents-appellees.

Ralph E. Goodale, Winston-Salem, for the respondents-appellants.

BROCK, Chief Judge.

General Statute 1-340 provides:

"Petition by claimant; execution suspended; issues found.A defendant against whom a judgment is rendered for land may, at any time before execution, present a petition to the court rendering the judgment, stating that he, or those under whom he claims, while holding the premises under a color of title believed to be good, have made permanent improvements thereon, and praying that he may be allowed for the improvements, over and above the value of the use and occupation of the land. The court may, if satisfied of the probable truth of the allegation, suspend the execution of the judgment and impanel a jury to assess the damages of the plaintiff and the allowance to the defendant for the improvements. In any such action this inquiry and assessment may be made upon the trial of the cause."

David King, having claimed title in fee under Annie King's will to 15 acres containing the homeplace and having had judgment rendered against him for the partition sale of the entire tract and equal division of the net proceeds, is a "defendant against whom a judgment is rendered for land" within the purview of the above statute. In addition it was incumbent upon David King to satisfy the trial judge of the "probable truth" of his allegations that (1) he claims under Annie King, (2) who, while holding the premises (3) under a color of title (4) believed to be good, (5) made permanent improvements thereon.

It is clear from his findings of fact that the trial judge was satisfied of the probable truth of David King's assertion that he claims under the will of Annie King, who believed she owned the 88-acre tract in fee, and who, while holding the premises, made permanent improvements thereon. In short, the findings of fact by the trial judge show that he was satisfied of the probable truth of (1), (2), (4), and (5) above. Therefore, it is apparent from the conclusion of law that the trial judge was not satisfied of the probable truth of the allegation that Annie King held the premises "under color of title." Indeed, this is the point upon which appellees' arguments center. Appellees urge that the allotment of the 88-acre tract to Annie King in the 1908 partition proceeding does not constitute color of title for two reasons: (1) The will of Robert M. Jones, under which Annie King claimed, clearly devised only a life estate; and (2) Annie King was not relying upon her allotment in the 1908 partition proceeding as an allotment of fee simple title because she alleged in the 1908 petition for partition that she and the other devisees were seized in fee. Thus appellees argue, and apparently convinced the trial judge, that since Annie King claimed fee simple title to her interest prior to the 1908 partition proceeding, the allotment to her of the 88-acre tract "did not establish color of title or title whereby Annie Jones King could have a reasonable belief that she owned the property in fee simple."

The fact that an analysis of her source of title (her father's will) would disclose as a matter of law that Annie King *601 was devised a life estate instead of a fee simple title does not in itself defeat David King's claim of betterments. "By the weight of authority it is held that constructive notice from the record, of the existence of a paramount title or interest, does not deprive an occupying claimant of the right to be reimbursed for his improvements on being ejected from the premises." 68 A.L.R. 288. North Carolina is in accord with this weight of authority. "The right to betterments is based upon the obvious principle of justice that the owner of land has no just claim to anything but the land itself, and fair compensation for damage and loss of rent. If the claimant, acting under an erroneous but honest and reasonable belief that he is the owner, makes valuable and permanent improvements, the true owner should not take them without compensation. The statute undertakes to declare and establish the equities between them." Pritchard v. Williams, 176 N.C. 108, 96 S.E. 733 (1918); accord R. R. v. McCaskill, 98 N.C. 526, 4 S.E. 468 (1887). "The beneficent provisions of the statute would be defeated by a construction which charges the bona fide claimant under a deed in form and purpose purporting to convey a perfect title with a knowledge of imperfections which might be met with in the deduction of his own title." Justice v. Baxter, 93 N.C. 405 (1885).

The record of the 1908 partition proceeding wherein Annie King was allotted the 88-acre tract by an adequate description is a public record of the superior court which constitutes color of title. Johnson v. McLamb, 247 N.C. 534, 101 S.E.2d 311 (1958); Burns v. Stewart, 162 N.C. 360, 78 S.E. 321 (1913); Bynum v. Thompson, 25 N.C. 578 (1843). The trial judge was in error in concluding that the 1908 partition proceeding did not constitute color of title.

Appellees also argue, and apparently convinced the trial judge as well, that because the petition in the 1908 partition proceeding alleged that the petitioners were seized in fee of the lands described therein, Annie King could not have been relying upon the allotment of the 88-acre tract to her in the 1908 proceeding as color of title. We are not convinced of the validity of this argument. Nowhere is there any indication that Annie King claimed fee simple title to the particular 88-acre tract except by virtue of the partition proceeding. She never relied upon any source of title to the particular 88-acre tract except that of the 1908 partition proceeding. She did not make permanent improvements until she was allotted the 88-acre tract in the 1908 partition proceeding. In the absence of a showing of fraud, of which there is no suggestion in this case, it is immaterial what title Annie King claimed as a tenant in common in the 153-acre "John Jones Place," for her claim to a fee simple title in severalty in the particular 88-acre tract stems solely from the 1908 partition proceeding. Annie King's belief that she was seized in fee of a one-half undivided interest in the 153-acre tract seems to strengthen the reasonableness of her belief that she held fee simple title to the 88-acre tract allotted to her.

The good faith which will entitle a claimant to compensation for betterments means simply an honest belief of the occupant in his right or title, and the fact that diligence might have shown him that he had no title does not necessarily negative good faith in his occupancy. Pritchard v. Williams, 176 N.C. 108, 96 S.E. 733 (1918). "But there must be shown not only an honest and bona fide belief in petitioner's title, but he must satisfy the jury, also, that he had good reason for such belief; and it is for the jury to judge of the reasonableness of such belief, based upon the entire evidence." Pritchard v. Williams, supra.

Execution of the order of sale appealed from should be suspended pending the determination by a jury of damages to the holders of the fee and the allowance to David King for the improvements. The issues suggested for jury determination in Pritchard v. Williams, supra at 110, 96 S.E. 733, appear to be easily adaptable to this case.

Execution of the order of sale of the 88-acre tract entered in this cause of 17 September 1975 is hereby suspended pending *602 a determination of David King's claim for betterments.

Error and remanded.

HEDRICK and CLARK, JJ., concur.