ON RBHRARING.
Opinion delivered December 3, 1904.
BatTrr, J.Appellants, in a motion for rehearing, suggest that the court erred in holding that they are not entitled to compensation for improvements made by Beasley, while occupying the lands in controversy, he holding under a bond for title. Is a bond for title color of title within the meaning of the act entitled “An act to be entitled ‘An act for the better quieting of titles,’ ” approved March 8, 1883 ? '
Section one of this is 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, or shall peaceably improve, 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.”
Color of title, as well as good faith, is made necessary to entitle an occupant of lands to compensation for improvements made by him. ■ One without the other is not sufficient. The words, “color of title,” have often received judicial interpretation. They have frequently been defined by the courts “to be that which in appearance is title, but which in reality is no title;” that is, that which in appearance purports to vest title, but in reality is no title. Wright v. Mattison, 18 How. 56; Allen v. Mansfield, 108 Mo. 343; Black v. Tennessee Coal, etc., Co. 93 Ala. 109; 1 Am. & Eng. Enc. Law (2d Ed.), 46, et seq., and cases cited. A bond for title is not in appearance title. It is only an agreement to convey or make title when certain conditions are performed. Teaver v. Akin, 47 Ark. 528; White v. Stokes, 67 Ark. 184; Kilburn v. Ritchie, 2 Cal. 145; Dunlap v. Daugherty, 20 Ill. 404; Bride v. Watt, 23 Ill. 507; Rigor v. Frye, 62 Ill. 507; Hardin v. Crate, 78 Ill. 533; Ellege v. Cooke, 5 Lea, 622. It does not appear in this case that the occupant, Beasley, who made the improvements, was or is entitled to a conveyance or title, according to the conditions of his bond. So it is not necessary to say what would have been the effect of his bond if he had complied with its conditions.
The words “color of title” having received a judicial interpretation, they are presumed to be used in that sense in the act oif the 8th of March, 1893, there being nothing in the act to indicate a contrary intent. Sutherland on Statutory Construction, § 255, and cases cited; Black on Interpretation of Laws, pp. 130, 131; Endlich on Interpretation of Statutes, § 367.
To make the lands in controversy liable for the value of improvements, the occupant, Beasley, “should have had peaceable possession, at the time the improvements were made, under color of title” in himself, “and should have made them under the belief that he was the owner of the land.” Beard v. Dansby, 48 Ark. 187; White v. Stokes, 67 Ark. 184; Deffeback v. Hawke, 115 U. S. 407. Not having had color of title, he is not entitled to compensation for the improvements made by him.
The motion for rehearing is denied.