Pritchett v. Hibbler

delivered the opinion of the court.

This suit was begun by the appellants in the court below to establish their title to and to recover possession of certain land. The appellee by answer and cross-bill denied the appellants’ title to the land, set up title in himself, and claimed, in event the appellants should be held to have title, an allowance for certain improvements placed on the land by his vendor in good faith under color of title. The *386appellants then requested, but were properly denied, permission to amend their bill by eliminating therefrom the land on which the improvements had been made, whereupon they filed an answer to the appellee’s cross-bill and claimed, for the first time, an allowance for rent. The final decree awarded possession of the land to the appellants “upon payment to defendant, T. G. Hibbler, the value of improvements as shown by proof ■ amounting to two thousand, twenty-five dollars less fair rental value for use of such lands for twelve years, such, rental being equal to eight per cent, per annum on eight hundred dollars, the value of said lands for twelve years, amounting to seven hundred sixty-eight dollars, the net balance to be paid to defendant, T. G. Hibbler, amounting to one thousand, two hundred.fifty-seven dollars, which sum should be paid at some short day, or in case of default therein said lands should be sold, and said T. G. Hibbler recompensed from the proceeds of such sale.”

The appellants having failed to1 pay to the appellee the one thousand, two hundr.ed fifty-seven dollars; the land was sold by a special commissioner appointed for that purpose, and purchased by the appellee for the sum of nine hundred twenty-five dollars, this sale was confirmed, and the nine hundred twenty-five dollars was directed by the court to be paid by the commissioner to the appellee as a credit on the amount decreed to be due him by the appellants for the improvements made on the land. The value of the improvements made on the land seems to have been fixed at the cost either of making or of replacing them.

The errors committed in the court below, and of which complaint is here made, are:

First. The appellants should have been allowed the rental value of the land in its improved condition. Miller v. Ingram, 56 Miss. 510; Johnson v. Futch, 57 Miss. 73.

Second. The measure of the appellee’s recovery for the improvements should have been the amount that the value of the land was enhanced thereby, and not the cost of making or of replacing the improvements; the actual cash *387value of such improvements (section 1849, Code of 1906; section 1482, Hemingway’s Code) being synonymous with “the enhanced value imparted to the land by reason of the improvement.” Hicks v. Blakeman, 74 Miss. 459, 21 So. 7, 400.

Third. The money realized from the sale of the land should have been divided between the appellants and the appellee in proportion to the sums due them respectively for rent and improvements. Section 1850, Code of 1905 (section 1483, Hemingway’s Code); 16 Am. & Eng. Enc. L. (2 Ed.), 107.

In allowing a-recovery for rents and improvements in actions of this character, equity will be guided by the státutes governing the allowance therefor in an action of law. Wilie v. Brooks, 45 Miss. 542; Hebron v. Kelly, 77 Miss. 48, 23 So. 641, 25 So. 877; Pritchett v. Stevens, 88 So. 627.

The decree of the court below, in so far as it deals with the allowance of rent and improvements and directs á sale of the land, will be reversed, and the cause remanded.

Reversed and remanded.