December 23, 1930. The opinion of the Court was delivered by The plaintiff, National Surety Company, Inc., commenced this action against the defendants, in the Court of Common Pleas for Williamsburg County, November 25, 1928, for the purpose of subjecting lands descended to the defendants to the payment of the ancestor's debt. Based on the allegations of the complaint, the plaintiff in the prayer of its complaint asked for judgment against ancestor's estate, C.G. Carsten, deceased, for the amount involved in the suit, for an order of sale of the said lands, and application of the proceeds of the sale to the alleged debt, and also for personal judgment against certain of the defendants, "by way of subrogation and contribution" for the amount involved, together with interest, and for such relief as the Court might deem just. All of the defendants, except the defendant Robert Carsten *Page 251 and the infant defendant, James C. Carsten, defaulted. Answers being filed on behalf of these defendants, the case was by order of Judge M.M. Mann, referred to P.H. Stoll, Esq., as special referee, to take the testimony and determine all issues, both of law and of fact. After taking the testimony, the referee filed his report, finding against the plaintiff's contention and in favor of the defendants, and recommended that the complaint be dismissed.
The plaintiff in due time filed exceptions to the referee's report, and the matter was then heard by his Honor, Judge E.C. Dennis, upon exceptions. His Honor, Judge Dennis, reversed the referee, issued an order to that effect, dated November 4, 1929, and ordered judgment in favor of the plaintiff against the estate of C.G. Carsten, deceased, for the sum of $5,540.69, and ordered personal judgment against each of the defendants, estate of C.G. Carsten, deceased, estate of C.C. Carsten, deceased, E.H. Carsten, and Robert Carsten, in the sum of $1,385.17. His Honor further ordered in his said decree that the plaintiff should have a first lien, exclusive of taxes, "over the lands described of the estate of C.G. Carsten, deceased," and decreed that the said lands be sold by the Clerk of Court of said County for the purpose of paying said indebtedness. From the order of Judge Dennis and the entry of judgment thereon, the defendants have appealed to this Court upon exceptions presented.
Since the referee's report and the decree of Judge Dennis, which will be incorporated in the report of the case, contain a clear statement of the issues involved, and also a chronological statement leading up to the commencement of the action, we shall omit making such statement here, and shall simply state our conclusion, based upon a study of the transcript of the case, without considering the exceptions separately and without entering into a discussion of the evidence disclosed by the transcript. *Page 252
We agree with the conclusion of the Circuit Judge in so far as he ordered, adjudged, and decreed that the plaintiff, National Surety Company, Inc., should have a first lien, exclusive of taxes, over the lands described of the estate of C.G. Carsten, deceased, except as to the improvements made by defendant Robt. Carsten, and in ordering the said lands (described in the said decree) sold and the proceeds derived from said sale applied to the payment of the plaintiff's claim; and we also agree with his Honor in ordering, adjudging, and decreeing personal judgment against each of the defendants, as directed by his Honor.
We are unable to agree with his Honor, the Circuit Judge, in failing and refusing to provide for pay to the defendant Robert Carsten, for the improvements he placed upon the said lands ordered sold. Under our view of the case, this defendant placed improvements on the land in question in good faith, a heavy expense to him, not knowing that the plaintiff claimed or had any interest in the same, but regarded the land as the common property of the defendants and expected to get that portion allotted to him, with the consent of the other defendants, which was done in the partition that was had. Under the rules of equity and the evidence in the case we think this defendant should be allowed compensation for the improvements he placed on the land. We think that this defendant, Robert Carsten, should be adjudged and decreed to have a first lien, exclusive of taxes, against the lot of land on which he made the improvements for the same, and we so hold, and the said lot of land should be sold subject to such lien.
It is the judgment of this Court that the decree of his Honor, Judge Dennis, and the judgment entered thereon be modified in accordance with the views herein expressed, and in all other respects the same is hereby affirmed, and that the case be remanded for such further proceedings as may be necessary, not inconsistent with the views herein expressed. *Page 253
MESSRS. JUSTICES BLEASE and STABLER and MR. ACTING ASSOCIATE JUSTICE SMITH concur.
MR. JUSTICE COTHRAN concurs in part and dissents in part.