(dissenting.) I am not able to concur in the opinion of the court in so far as it .holds that a defendant who has in good faith made improvements on land under a bond for title cannot under our statute recover the value of such improvements against one who by virtue of a paramount title recovers the land in an action of ejectment.
The statute under which a recovery is allowed in certain cases for improvements rests upon principles of equity and justice that are exceedingly plain, for it is entirely right and just that when one in good faith, on account of a mistake as to his title to land, has made valuable and permanent improvements thereon, which increase the value thereof, the real owner, when he asks the aid of the law tó gain possession of the property, should be required to repay the value of such improvements, to the extent that they have increased the value of the land.
The common law did not permit a recovery for such improvements, and the object of the statute was to remedy this defect of the law, and it, being a remedial statute, should receive a liberal construction, in order to carry into effect the legislative intent.
Now, if A, knowing that B has color of title to land, buys it from him, and takes possession under his purchase, and makes improvements which add to the permanent value of the land, and it turns out that C, and not B, is the owner, the equity of A to receive pay for his improvements is equally strong, whether he received an absolute deed from B, or only‘a bond for title. His belief in the validity of his own title depends not on whether he has a bond for title or deed from B, but on whether B has an apparently valid title. If B has color of title which is apparently valid, and A, believing him to be the owner, buys the land, and makes the improvements, it seems to me that, within the meaning of this act, he makes them under legal color of title, whether he has a deed or only a bond for title, for he makes them under color of title which B has, and which title B has contracted and sold to him, giving him all the rights with reference to making improvements that B himself had. To hold differently under a statute that allows a recovery for improvements made in good faith under color of title is to disregard entirely the purpose of the statute, and, by taking what seems to me to be a very narrow and technical view of the law, to draw a distinction where none was ever intended.
But this statute, which is quoted in the opinion, puts the matter beyond question by showing that it is immaterial whether the color of title be legal or equitable. If any person, it says, “believing himself to be the owner, either in law or equity, under color of title has peaceably* improved any land,” etc., he shall be entitled to be paid the value of his improvements. The words “in law or equity” show beyond question that it is immaterial, so far as the right to recover for the improvements is concerned, whether they were made under an equitable or legal color of title. It was clearly intended to protect the one making expenditures for improvements under the belief that he was the owner of an equitable title, as much so as if he believed he was the owner of the legal title. Now, equity regards that as done which ought to be done. And, after land has been purchased and a valid bond for title executed and delivered by the vendor to the vendee, the vendor is in equity regarded as the owner of the purchase money, and the vendee is looked upon and treated as the owner of the land. “An equitable estate has vested in the vendee commensurate with that provided by the contract.” And this is so whether the purchase price has been paid or not, for the lien of the vendor for the purchase price is not inconsistent with the vendee’s equitable estate under the contract of purchase. While the legal title remains in the vendor, he holds it in trust for the vendee, and as security for the payment of the purchase price. 1 Pomeroy, Equity Jurisprudence, § 368, and cases cited.
Now, the defendant Beasley in this case purchased the land in controversy from Gould, who had legal color of title by a conveyance from the State, which conveyed him the title to the 'land. This title was afterwards cut off bjr an overdue tax sale, though Gould and Beasley were ignorant of this fact. But for this overdue tax sale Gould would have been the owner of the legal title, and Beasley, by virtue of the bond for title, would have been in equity the owner of the land. In other words, notwithstanding the' overdue tax sale, the bond for title from Gould gave Beasley an equitable color of title, and he, being ignorant of the overdue tax sale, was justified in believing that he was in equity the owner of the land. There is nothing in the statute that limits the color of title under which one must hold to claim improvements to a strict legal color of title. On the contrary, as I have before stated, the language of the act protecting one who believes himself the owner, “either in law or equity,” shows clearly that color of title in law or equity is sufficient.
The improvements being made by Beasley in good faith under belief that he was in equity the owner of the land, and under an equitable color of title, it seems to me that he comes strictly within the letter as well as the spirit of the.statute. For these reasons, I am of the opinion that the decision in White v. Stokes, 67 Ark. 184, is in conflict with the statute, and should be overruled, and defendant allowed his improvements.
McCulloch, J., concurs in the dissenting opinion.