(after stating the facts.) A majority of the court are of the opinion that the demurrer to the complaint in this case should have been sustained. There are many authorities upon which this conclusion may be sustained. According to the;e authorities, the occupant of land without title cannot maintain an original action for the value of improvements made thereon by him until possession is demanded by the owner, or until an action is brought which, if successful, will oust him.
The pertinent sections of the act under which this action was brought (Acts 1883, p. 106, § 1—4) are as follows:
“Section 1. That if any person believing himself to be the owner, either in law or equity, under color of title, has peaceably improved any land, which upon judicial investigation shall be decided to belong to another, the value of the improvements made as aforesaid and the amount of all taxes which may have been paid on said land by such person, and those under whom he claims, shall be paid by the successful party to such occupant, or the person under whom or from whom he entered and holds, before the court rendering judgment in such proceedings shall cause possession to be delivered to such successful party.
“Section. 2. That the court or jury trying such cause shall assess the value of such improvements in the same action in which the title to said lands is adjudicated; and on such trial the damages sustained by the owner of lands from waste, and such mesne profits as may be allowed by law, shall also be assessed, and if the value of the improvements made by the occupant and the taxes paid as afoi’esaid shall exceed the amount of said damages and mesne profits combined, the court shall enter an order as a part of the final judgment providing that no writ shall issue for the possession of the lands in favor of the successful party until payment has been made to such occupant of the balance due him for such improvements and the taxes paid; and such amount shall be a lien on the said lands, which may be enforced by equitable proceedings at any time within three (3) years after the date of such judgment.
• “Section 3. That in recoveries against such occupants no account for any* mesne profits shall be allowed unless .the same shall have accrued within three (3) years next before the commencement of the suit in which they may be claimed.
“Section 4. That in any such equitable proceedings the court may allow to the owner of the lands as a set-off against the value of such improvements and taxes the value of all rents accruing after the date of the judgment in which it has ■ been allowed.”
It appears from the language of the act, as we construe it, that it was not intended that it should apply to a case where the occupant was not disturbed in his possession, nor until some proceeding was commenced to oust him. .The act seems to contemplate antecedent litigation to recover the land, before the occupant can claim the value of his improvements. In other states the right to maintain such an action is denied, and it is held that it is premature if brought prior to a possessory proceeding by the owner. Fish v. Blasser, 146 Ind. 186; Asia v. Hiser, 22 Fla. 378; Barton v. National Land Co., 27 Kas. 634; Graeme v. Cullen, 23 Gratt. 266.
An error in overruling a demurrer to a complaint on the ground that the complaint does not state a cause of action is not waived by answer, if there is no cause of action stated in the complaint. Thompson v. Brazile, 65 Ark. 495.
A majority of the court are also of the opinion that the plaintiff had no color of title, when most of the improvements were made, as he had only a bond for title when they were made. Color of title is defined to be that which in appearance is title, but which in reality is no title. Teaver v. Akin, 47 Ark. 528; Wright v. Mattison, 18 How. 56.
A bond for title does not purport to convey the title to the obligee. It is an executory agreement to make title in the future, upon performance of certain conditions. Id. See Hershey v. Thompson, 50 Ark. 484; 1 Am. &. Eng. Enc. Law, (2d. Ed.) 859; Osterman v. Baldwin, 6 Wall. 116. Without further citations,, suffice it to sav. we think this is the reasonable doctrine, supported by the weight of authority, though not before this directly decided in this state.
As to the improvements made after the occupant had obtained a deed to the land, which was color of title, we think it appears from the testimony that, before these improvements were made, the occupying tenant had notice that his vendor had no title; and therefore it cannot be said that such improvements were made by him in good faith, as he could not have believed that he was the owner of the land. He at least was put upon inquiry, and might easily have learned that he had no title. In order to have acted in good faith, some diligence was required of him after he was put upon notice. He could not shut his eyes, and say he believed in good faith that he had title, when he was informed that he did not have.
Reversed, and complaint dismissed without prejudice.
Riddick, J., concurred in the judgment only.