While this principle has been invoked under varying circumstances, it is ordinarily, if not exclusively, applied in cases where the occupant is in possession under the bona fide belief that he is the owner. Faison v. Kelly, 149 N.C. 282. In this State this phase of the law controlling the right of the occupant, holding under color of title believed to be good, to claim compensation for improvements of a permanent nature before surrendering possession to the holder of a superior title was reduced to statutory form in 1871.
Likewise the right of the life tenant to reimbursement for permanent improvements already made, was a question which the state court had the power to decide. See Faison v. Kelly, 149 N.C. 282, 62 S.E. 1086.
Commissioners of Roxboro v. Bumpass, 237 N.C. 143, 74 S.E.2d 436. It applies only where the improvement was constructed by one who was in possession of the land under color of title and who, in good faith and reasonably, believed he had good title to the land. Pamlico County v. Davis, 249 N.C. 648, 107 S.E.2d 306; Harrison v. Darden, 223 N.C. 364, 26 S.E.2d 860; Rogers v. Timberlake, 223 N.C. 59, 25 S.E.2d 167; Faison v. Kelly, 149 N.C. 282, 62 S.E. 1086. In Rhyne v. Sheppard, 224 N.C. 734, 32 S.E.2d 316, the plaintiff having acquired title to two lots in a real estate development, in good faith built a house on two other lots, believing them to be the lots described in his deed. He sued the true owner of the lots for the value of the improvement.
In directing an answer to the 5th issue, the court held as a matter of law that the defendants were estopped by the record herein from asserting any claim for betterments. The ruling seems to have been an inadvertence, Pritchard v. Williams, 176 N.C. 108, 96 S.E. 733, on rehearing 178 N.C. 444, 101 S.E. 85; S.C., 181 N.C. 46, 106 S.E. 144; Faison v. Kelly, 149 N.C. 282, 62 S.E. 1086, though not necessarily fatal. Foxman v. Hanes, 218 N.C. 722, 12 S.E.2d 258; Rankin v. Oates, 183 N.C. 517, 112 S.E. 32. "A new trial will not be granted when the action of the trial judge, even if erroneous, could by no possibility injure the appellant."
There are many cases where it has been held that although aware of an adverse claim, the possessor may have reasonable and strong grounds to believe such claim to be destitute of any just or legal foundation, and so be a possessor in good faith, and as such entitled to compensation for improvements. The principle here declared has been recognized and applied by this Court in Alston v. Connell, 145 N.C. 6, and Faison v. Kelly, 149 N.C. 282, as well as by the Courts of other States. Tumbleston v. Rumple, 43 S.C. 275; Templeton v. Lowry, 22 S.C. 389; Parrish v. Jackson, 69 Tex. 614; Gaither v. Hamrick, 69 Tex. 92; Elam v. Parkhill, 60 Tex. 581; Hutchins v. Bacon, 46 Tex. 408; Dorn v. Dunham, 24 Tex. 366; Hairston v. Sneed, 15 Tex. 307; Sartain v. Hamilton, 12 Tex. 219 (62 Anno. Dec., 524); Griswold v. Brugy, 6 Fed., 342; Cahill v. Benson, 19 Tex. Civ. App. 40; Whitney v. Richardson, 31 Vt. 300.
Northcott v. Northcott, ante, 148; Merritt v. Scott, 81 N.C. 385; unless when they were made such life tenants held the property under the fair and reasonable belief that he owned the same in fee. Faison v. Kelly, 149 N.C. 282. On the record, however, we do not think this objection is open to appellants; in fact, we do not understand that they now make it, and this on the ground that they joined in the complaint alleging that these betterments were justly due the claimants.
CLARK, C. J., did not sit. Cited: Faison v. Kelly, 149 N.C. 284.
New trial. Cited: Faison v. Kelly, 149 N.C. 284; Ford v. McBrayer, 171 N.C. 423. (110)
Affirmed. Cited: Johnson v. Allen, 100 N.C. 139; Gudger v. R. R., 106 N.C. 484; Purifoy v. R. R., 108 N.C. 106; Faison v. Kelly, 149 N.C. 285.
Error. Reversed. Cited: Barker v. Owen, 93 N.C. 203; R. R. v. McCaskill, 98 N.C. 535; Wood v. Tinsley, 138 N.C. 513; Faison v. Kelly, 149 N.C. 285; Pritchard v. Williams, 176 N.C. 109; Davis v. Robinson, 189 N.C. 601.