In the Petition for Rehearing, counsel for appellant urges upon us very earnestly that in the opinion heretofore filed, we have ignored our prior case of Booth v. Booth, 114 Iowa 78. In that case, as in this, the life tenant was the mother of the remaindermen and occupied the premises up to the time of her death. The defendant son occupied the same with her and she lived in his family. The defendant was one of the remaindermen and the two plaintiffs were the others. The two plaintiffs brought a partition suit against the defendant. By cross-bill the defendant asked that "if a sale be ordered the amount expended by him in improvements be made a lien upon the proceeds." The trial court refused any allowance. In an affirming opinion we said:
"The improvements were put upon the land by defendant during the continuance of the widow's life tenancy. We know of no rule which allows the representative of the life tenant to make aclaim against the owners of the reversion for improvements on the premises during the tenancy, nor does it appear that, if there were any such right, defendant is the owner thereof. * * * Furthermore, defendant does not show the permanent value of the improvements as distinct from the cost of ordinary repairs. It also appears that plaintiffs distinctly notified defendant thatthe premises were not to be subjected to any expense forimprovements made by defendant. Moreover, as above indicated, the improvements were not made by defendant as cotenant, but while occupying the premises under an arrangement with the life tenant during the continuance of the life estate."
It will be noted that there was no claim in that case for the present value of any improvement or for any alleged increase in the present value of the farm because thereof. The fundamental fact, which invokes the application of the equitable principle *Page 447 discussed in the original opinion, is absent from this case. The opinion is made to turn upon the facts here indicated. It contains no discussion of, or reference to, such equitable principle.
Giving to the opinion in the Booth case, the most favorable construction contended for by appellant, its only effect would be to require us to discuss the disputed evidence in the case at bar. In the original opinion we found it unnecessary to determine the dispute of fact as between the parties herein. The defendant testified that he had written to the plaintiff and advised her of what he wanted to do and that she had never objected thereto, but had acquiesced therein. This contention was denied by the plaintiff. She admitted however, that she knew substantially all that was being done by her brother, the defendant. Admittedly she never raised any question about it until they attempted to make a settlement between themselves many months after the death of the mother. We think the preponderance of the evidence in the light of all the circumstances, is with the defendant on this dispute of fact. There is little room to doubt that the improvements were made by the defendant in reliance upon his interest in the estate as a remainderman and that the plaintiff so understood it. While the mother, as life tenant, consented to it, she expressly disclaimed all interest in, or liability for, such improvements. They were deemed to be the absolute property of the defendant. They were placed there lawfully and not wrongfully and with the consent of all parties having interest in the estate. This brought the defendant and his improvements clearly within the operation of the equitable principle hereinbefore referred to. These facts are clearly differentiated from the facts obtaining in the Booth case. This defendant did not make such improvements for the life tenant, nor as her representative.
The former opinion must therefore be adhered to.