The land in dispute is two acres out of a tract assigned to the feme plaintiff as dower, she being the widow of Dickson Thompson. In 1839 she went into the actual occupation of all her dower land except the piece in dispute, and was in the constructive possession of that piece until 1859, when the defendant took possession of it, and has lived on it ever since, and made improvements on it with the knowledge of plaintiffs, and without objection from them, until the institution of this suit on 12 September, 1870. The feme plaintiff married the other plaintiff in 1846.
On this case the plaintiffs were entitled to judgment for the possession of the land. The defendant, however, in support of an equitable counterclaim to the value of his improvements, less the annual value of his occupation, offered to prove:
1. That in 1859 one Haywood Ham executed a deed of conveyance to the defendant for the said two acres, and that the plaintiffs, the defendant and Ham understood and believed that said Ham held the legal title to said land in trust for the plaintiff.
2. That the plaintiff sold said two acres, received the purchase money, and directed said deed to be made to defendant, and that he possessed and improved said two acres with the consent and approval of the plaintiffs.
3. The value of said improvements.
The Judge refused to receive this evidence.
(186) There was judgment that plaintiffs recover the possession and damages, from which defendant appealed.
We suppose that the judge rejected the evidence because in his opinion it was immaterial, and did not tend to support any available defense, legal or equitable.
In this we think he was in error. It tended to prove what was equivalent to a parol agreement by plaintiffs to convey the land, and acceptance of the purchase money from the defendant, or from some one *Page 145 from him, and that on the faith of this contract the defendant entered and expended money in improving.
It is settled law in this State that although a parol agreement to convey land is void by our statute of frauds (Bat. Rev., ch. 50, sec. 20), yet if the vendee in reliance on it pays the purchase money and makes improvements, he cannot be evicted until the vendor repays the purchase money and makes compensation for the value of the improvements. Baker v.Carson, 21 N.C. 381; Albea v. Griffin, 22 N.C. 9. The doctrine stands on general principles of equity. It is extended by ch. 147 Laws 1871-'72, Bat. Rev., ch. 17, sec. 262, etc. (which, however, was not passed until after the commencement of this action) to cases in which it had not before been held in this State to apply. An illustration of the principle in the case of partition among cotenants is found in Pope v. Whitehead,68 N.C. 191.
The rule for estimating the value of the improvements is declared inWetherell v. Gorman, 74 N.C. 603. It is not what they have cost the defendant, but how much they have added to the value of the premises. See also, Laws 1871-'72, ch. 147, Bat. Rev., ch. 17, sec. 262d.
If the equitable defense or counterclaim of the defendant shall be established in his favor a question may arise as to what share of the value of the improvements estimated by the rule referred to the plaintiff must pay. She has but an estate for life. The (187) improvements, we may suppose, add to the value not only of her life estate, but of the inheritance. Whether the whole increased value of the lands must be paid by her, leaving it to her to recover out of the reversioners their equitable proportion, if she can, or whether she shall pay for the improvements only their value to her estate, leaving it to the defendant to recover the residue of the value out of the reversioners, if he can, are questions of importance. They are provided for by the Act of 1871-'72 above cited as to cases where that act is applicable. Whether that act is retrospective and applies to defendant's case as a legislative enactment, or whether the principles there stated are genral [general] principles of equity and applicable to it by their virtue as such, it is unnecessary for us to consider.
We are of opinion that as the rejected evidence went not to impeach the plaintiff's legal right, but only to support the equitable counterclaim of the defendant, the judgment here should be to affirm the judgment below, which determines only the legal right to possession in the plaintiffs, with a stay of execution until the equitable rights of the defendant shall be ascertained and execution be ordered to issue. This is an analogy to what would have been the former practice, if after a judgment at law in ejectment the defendant had filed his bill in equity to restrain execution and to have the equitable relief which he claims *Page 146 by his counterclaim. The defendant's right to the relief must be ascertained according to the course of the court.
Judgment below affirmed, and ordered that the writ of possession be stayed until the further order of the Superior Court, to which the case is remanded to be proceeded in, etc.
The defendant will recover his costs in this Court.
PER CURIAM. Remanded.
Cited: R. R. v. McCaskill, 98 N.C. 537; Fortescue v. Crawford,105 N.C. 34; Vann v. Newsom, 110 N.C. 126.
Overruled: Scott v. Battle, 85 N.C. 189; Smith v. Ingram, 130 N.C. 105;Kelly v. Johnson, 135 N.C. 648; Ford v. Stroud, 150 N.C. 365.
(188)