The ruling upon the inquiry to be made by the jury is in accord with the directions of the statute, which is in these words: "The jury, in assessing such damages, should estimate against the defendant the clear annual value of the premises during the time he was in possession thereof, exclusive ofthe use by the tenant of the improvements thereon made by himself or thoseunder whom he claims; and also the damages for waste or other injury to the premises committed by the defendant." Sec. 474 of The Code.
The plaintiff excepts to the judgment on two grounds:
1. That the act is the taking of property from the owner and giving it to a trespasser, and is unconstitutional and void.
(202) 2. That so much of the judgment as directs a sale in case of nonpayment of the sum which the statute undertakes to put upon the land as a lien is unwarranted by law.
Statutes very similar to ours have been passed in many of the states, but none with more equitable provisions for the protection of the interest of the owner.
As the statute bars a recovery for damages accruing more than three years before the bringing of the action, the bar is removed, and they are made available against a valuation of improvements above the damages that are not barred, so far as necessary, if sufficient to extinguish the claim for improvements. Sec. 477.
So, if the enhanced value is greatly disproportionate to the value of the land unimproved, so that it might almost be said that the owner is "improved out of his property," he has an election to let the land go, relinquishing his estate upon payment by the defendant of its value as unimproved. Sec. 484.
If the payment is not made to the plaintiff or into court for his use within a time to be fixed by the court, a sale may be ordered, and therefrom the sum due the plaintiff taken and the residue, if any, paid to defendant. Sec. 485.
If the plaintiff does not exercise his right of election, the sum adjudged the defendant constitutes a lien upon the land, and this can only *Page 189 be made effectual and enforced, if not paid without, by a sale of the premises. Sec. 479.
Provision is also made when the plaintiff's estate is not a fee simple for an equitable apportionment of what is to be paid to the defendant between him and those who own the remainder or reversion in the land.
As this Court said in the opinion in Merritt v. Scott, 81 N.C. 385, the owner of land who recovers it has no just claim to anything but the land itself, and a fair compensation for being kept out of possession, and if it has been enhanced in value by improvements, made under the belief that one was the owner, the increased value he ought not to take without some compensation to the other. This obvious equity is established by the act."
So Mr. Justice Ashe, delivering the opinion in Wharton v. (203)Moore, 84 N.C. 479, expresses the rule thus: "The right to betterments is a doctrine that has gradually grown up in the practice of the courts of equity, and while it has been adopted in many of the states, it is not recognized in others. But it may now be considered as an established principle of equity that whenever a plaintiff seeks the aid of a court of equity, to enforce his title against an innocent person who has made improvements on land without notice of a superior title, believing himself to be the absolute owner, aid will be given to him only upon the terms that he shall make due compensation to such innocent person to the extent of the enhanced value of the premises by reason of the meliorations or improvements, upon the principle that he who seeks equity must do equity."
As there are now no separate courts in which the rule can be enforced, and all relief must be sought in one tribunal, the Legislature has embodied the principle in the from of law, and made it operative when land is sought to be recovered by action without regard to former distinctions.
We have recognized the validity of this legislation in the case ofJustice v. Baxter, post, 405, when the value of the improvements, upon the testimony, seemed to constitute a very large portion of the premises as improved, and we have no hesitation in expressing our conviction that the act contravenes no part of the organic law, Federal or State.
We have met in our researches but a single case (there may be others which have escaped us) where the validity of such a statute has been contested on the ground of its repugnancy to the Constitution, and it is there held that the reimbursement for the expense of improvements, made by one in possession, in good faith, and who is evicted, "is not unconstitutional nor inconsistent with equity or the civil law." Saundersv. Wilson, 19 Tex. 194. The case relied on by plaintiff's counsel, McKoy *Page 190 v. Grandy, 3 Ohio St. 463, by no means impugns, but affirms the validity of such legislation. The ruling there, as given in the syllabus, which for brevity we quote, is thus expressed in two propositions: "The (204) option which this law gives to the owner of land after a recovery in ejectment, either to take the land on paying for the improvements, or to take the amount of its value in money, without the improvements, secures to the owner the property in the land, and at the same time protects the occupying claimant in his equitable claim to a compensation for his improvements."
"But the amendatory act of 1849, giving to the occupying claimant the option which the original act gave to the owner of the land, thus taking the property away from the owner after the solemn form of a recovery and judgment in ejectment, and transferring it to his unsuccessful adversary, who is ordered to be ejected as an intruder upon the land, is a palpable invasion of the right of private property."
This ruling is clearly right in both particulars, and meets our full approval. The former act, like our own in the feature adverted to, is free from objection, while the amendment is little less than a direct confiscation of the property of one person for the use of another, which can find sanction in no just form of constitutional government.
It was also urged that this enactment interferes with the right of homestead by withdrawing from it a part of the estate which it might become necessary to set apart to an insolvent debtor, but the debtor had only the unimproved land to which the right of homestead could attach. The improvements are inequity, and, under our statute, the property of another. They constitute an encumbrance upon the land. The statute in the cases provided for only separates these united interests, securing the land to the owner, its increase in value from the labor and expenditure upon it to him who made them. The owner's estate thus ascertained may be subject to the exemption — it is unabridged by the disjunction.
We are of opinion there is no error in the record.
No error. Affirmed.
Cited: Johnston v. Pate, 95 N.C. 71; Bryan v. Alexander, 111 N.C. 144;Perry v. White, ibid., 199; Whitfield v. Boyd, 158 N.C. 453; Carterv. Carter, 182 N.C. 191. *Page 191 (205)