Smith v. . Suitt

ClaeksoN, J. Tbe questions involved: (1) Under tbe facts as alleged in tbe complaint — Is a life tenant alone chargeable with tbe cost of permanent improvements on property in which she owns only a life estate and which improvements tend to enhance tbe value of tbe remainder-man’s estate as well as her own? We think so. (2) At tbe request of a life tenant will tbe court order a sale of property for partition • and division or reinvestment? We think not in a partition proceeding. Upon *8 proper showing a sale for reinvestment can be bad in an equitable proceeding or under C. S., 1744. As to the first question, we think the principle is well stated in 17 R. C. L., at p. 635 and 636: “It is the general rule that a life tenant is not entitled to compensation from the remainderman for the enhancement of the property by reason of his improvements, nor can a charge upon the lands of the inheritance be made for such improvements, it being generally held that a life tenant does not come within the purview of the betterment or occupying claimant’s acts. The reasons for this rule are that the life tenant should not be permitted to consume the interest of the remainderman by making improvements that the re-mainderman cannot pay for, or that he does not desire, and also that improvements are made for the immediate benefit of the life estate, and usually without reference to the wishes of the remainderman. Mere knowledge on the part of the remainderman that improvements are being made and passive acquiescence therein are not sufficient to charge him with the cost thereof. An exception has been made where the life tenant is an infant, and the income from the property is by order of the court invested in permanent improvements. Ordinarily, a third person claiming under the life tenant is entitled to no greater rights than the life tenant himself, but some courts, applying equitable principles, have allowed recovery where improvements have been made by a person who, although in fact holding under a life tenant, believed himself' to be the owner of the fee.” Merritt v. Scott, 81 N. C., 385; Northcott v. Northcott, 175 N. C., 148; Pendleton v. Williams, 175 N. C., 248; Harriett v. Harriett, 181 N. C., 75. The case of Middleton v. Riggsbee, 179 N. C., 437, we think is distinguishable and applicable to the facts in that particular case. It is said in Pritchard v. Williams, 181 N. C., at p. 47: “The plaintiff’s fourth and fifth exceptions were to the refusal of prayers to instruct the jury, which were based upon the idea that since under- the terms of the trust established in the main cause, 175 N. C., 319, the plaintiff was decreed to be the owner of the life estate, he occupied the position of a life tenant with respect to the improvements made by him. But he was not an ordinary life tenant within the meaning of the principle that life tenants cannot recover for betterments which were placed thereon with knowledge of the fact. The defendant made the improvements, as the jury find, under a bona fide belief that he was the owner in fee simple, and the Court decided that the plaintiff was entitled to have the issue thereon submitted, 176 N. C., 108, by a unanimous Court, and. this was reaffirmed on rehearing, 178 N. C., 444. The plaintiff’s prayers were therefore properly refused.” The plaintiff in the present action made the permanent improvements by her own will and accord, and knew she had only a life estate. *9 In tbe instant ease, tbe life tenant does not join witb tbe remainder-men in a petition for tbe sale of tbe property for partition, and neither is sbe made a party defendant in an action instituted by tbe remainder-men, but, on tbe other band, tbe plaintiff has sought in an adversary proceeding against tbe remaindermen to have a sale of tbe property ordered in order that same may be partitioned. This cannot be done. C. S., 3235. Ray v. Poole, 187 N. C., 749; Gillespie v. Allison, 115 N. C., 542 (S. c., 117 N. C., 512). Under C. S., 1744, tbe life tenant can maintain this action for reinvestment and sell tbe lands described in tbe complaint upon proper showing, and this can be done in an equitable proceeding. On this aspect see Middleton v. Riggsbee, supra; Pendleton v. Williams, supra. Tbe complaint is not demurrable unless it is wholly insufficient. If a demurrer is interposed to a whole complaint and any one of tbe causes of action is good tbe demurrer will be overruled. Tbe judgment below overruling tbe demurrer is therefore Affirmed. BeogdeN, J., not sitting.