Lee v. Bowman

Sherwood, Judge, delivered the opinion of the court. E. B. Bowman and others recovered judgment in ejectment against Josiah Lee. Before, however, that recovery was made effectual by the usual writ, Lee under the provisions of the statute to that effect, instituted the present proceeding for compensation for improvements made, alleging in his petition those matters of statutory designation which entitled him to the relief sought. The defendants answered, controverting the material averments of the petition, and claimed by way of counter-claim or recoupment, that they were entitled to recover of the plaintiff for the rents and profits of the premises sued for, and for the waste and injury committed thereon by the plaintiff; but the answer did not allege at what period the waste and injury were [403] done, nor designate the time from which, the rents and profits were to be computed, whether prior or subsequent to the termination of the action brought by the defendant. A jury was impaneled and the parties went to trial, but in consequence of the adverse rulings of the court, the plaintiff took a non-suit, and has brought this case here by appeal. Passing by certain minor points exhibited by the record, we will devote ourselves to the discussion of those which alone are deemed worthy of specific mention. The court below was clearly right in its construction of those sections of the statute upon which plaintiff’s claim was founded. The very existence of that claim depended on the question whether the improvements for which compensation was asked,were made “ in good faith,*” and as this phrase has an equitable origin, resort must be had to works on equity jurisprudence to ascertain under what circumstances, the phrase is applicable; and an examination of these authorities will show beyond question, that notice and good faith cannot co-exist. For it is an equitable doctrine of universal recognition, that he who takes with notice of the claim of another, takes subject to that claim. Notice in this connection, does not mean direct and positive information, but anything calculated to put a man of ordinary prudence on the alert, is notice. So that it will be readily perceived, that the statute under consideration by the adoption of the terms “notice” and “good faith,” adopted them with the full force and meaning which attached to them as inseparable incidents in that system of jurisprudence from whence they were derived. If the testimony adduced in this case by the defendants deserves credence, there can be no room for doubt that the plaintiff before he purchased the land sued for, received information of such a character as ought to have compelled investigation. No notice in writing was necessary in order to put him on inquiry. After the clue was furnished him, he was manifestly chargeable with knowledge of all those facts to which that clue, if properly followed, would have led. The sole object of § 28 of the ejectment Act, was to furnish a mode whereby the “occupying claimant” could be conclusively bar [404] red and cut off from recovery for improvements made, after being notified in the manner in that section prescribed, thus leaving the equitable doctrine as to notice, incorporated in the prior provisions of the act referred to, entirely unaffected by anything in that section contained. Any other-conclusion than this, would defeat the manifest purpose which induced the passage of the act, and be reached at the hazard of the grossest injustice. It would be in effect saying to the occu, pying claimant: “make all the improvements, you desire on the land of another and your compensation fpr.them is secure, so long as your knowledge of a title superior to your own, does not assume the shape of a written notice,” The law never, intended, and will not tolerate any such absurdity. So far then as concerns the points just.discussed, no .ground for a reversal is seen. There was evident error,.however, in nob rejecting all the evidence offered by defendants concerning .rents and.profits in support of their counter-claim; and in not-confining their evidence as to waste and injury, to a period subsequent’to the rendition, of the judgment in ejectment... And the. very plain provisions of §§ 13,15 and 16, of the ejectment Act, conclusively show this. Eor § 13 provides, that the prevailing plaintiff “shall recover damages for all waste and injnry,-and by way of damages the. rents and profits, down to the time of assessing the same.” And. § 15, under circumstances like those which attended the.judgment recovered by the defendants in their, action for possession, requires ,the jury to “find the monthly.value of the rents, and profits.” Now it is an obvious fact, that. the finding of the jury in this regard would be utterly devoid of meaning, unless .it were designed as. the basis of some future computation. And this idea finds abundant confirmation in the requirements of § 16, that where the plaintiff recovers judgment, for the premises, he shall also recover, “the damages assessed, and the accruing rents and profits at the - rate found by the jury, from the tibie of rendering the verdict until the possession of the premises is delivered to the plaintiff.” The result therefore of the [405] judgment in favor of the defendants, was to merge and include in such judgment, all injuries resulting from the adverse occupancy, the accruing rents and profits down to the time of obtaining possession, and the damages for waste and injury at the time of the assessment thereof. But in the very nature of things the verdict could not be anticipatory of waste and injury in future; and for this reason such matters would obviously be proper subjects for recoupment or counter-claim, and evidence relating thereto unquestionably admissible. No errors, other than those above mentioned, have been observed, but on account of those the judgment must be reversed and the cause remanded. The other judges concur.