#### BOARD OF COMMISSIONERS OF ROXBORO v. MAGGIE BUMPASS, ELSIE BUMPASS DOGGETT and Husband, J. W. DOGGETT, HUBERT LUNSFORD, Defendants, and the Following Interpleaders: ROXBORO BUILDING & LOAN ASSOCIATION, T. F. DAVIS, Trustee, JOHN D. CLAY and Wife, GERTRUDE M. CLAY, AUSTIN B. CLAY, MRS. AUSTIN B. CLAY and DEE A. CLAY.

(Filed 30 January, 1953.)

1. Betterments § 6: Pleadings § 19b—

Since the statute requires that petition for betterments be filed in tbe action in which judgment for the land has been rendered, the filing of such petition by several claimants cannot result in a misjoinder of parties and causes, although the better practice would be for each claimant to file his claim separately. G.S. 1, Art. 30.

2. Betterments § 1—

The right to betterments is based upon the equitable principle that a person in possession who has made valuable improvements under the *tona fi&e*belief that he is the owner of the land should not be required to surrender possession to the true owner without compensation for such betterments to the extent that they permanently enhance the value of the land, and therefore claim for betterments cannot accrue until the owner seeks and obtains the aid of the court to enforce his right of possession.

3. Same—

The remaindermen had a tax foreclosure set aside to the extent that the tax deed purported to convey the remainder, but the conveyance of the life *144estate by tbe tax foreclosure was not affected. *Held:*Persons in possession under tbe tax foreclosure are not entitled to file claim for betterments against tbe remainderman until the falling in of the life estate and the assertion of tbe right to immediate possession by tbe remainderman.

Appeal by interveners from *Sharp, Special Judge,*October Special Term, 1952, PersoN.

Affirmed.

Civil action to foreclose tax lien, beard on demurrer to petition of interveners for betterments.

On and prior to 29 September 1942, title to tbe *locus*was vested in defendant Elsie Bumpass Doggett, subject to an estate for life therein owned by defendant Maggie Bumpass. On said date plaintiff instituted tbis action to foreclose its lien for past-due taxes as authorized by law. Tbe land was sold to R. P. Burns and tbe sale was confirmed 25 January 1943. Burns assigned bis bid to tbe defendant Lunsford, and tbe commissioners executed a foreclosure deed to said assignee which is of record in tbe Person County Registry.

On 27 April 1946, Lunsford conveyed tbe land to tbe interpleader Dee A. Clay, and on 17 May 1948, be conveyed a part thereof to inter-vener John D. Clay. Each built valuable improvements on tbe respective shares owned by them, partly out of funds borrowed from tbe intervener Roxboro Building & Loan Association.

On 7 April 1949, defendants Elsie Bumpass Doggett and husband appeared and moved to vacate tbe order of sale, tbe decree of confirmation, and tbe foreclosure deed in so far as they affect or attempt to convey her remainder interest in said land. Tbe motion as to tbe husband was allowed but was denied as to Elsie Bumpass Doggett. On her appeal to tbis Court (233 N.C. 190, 63 S.E. 2d 144), tbe judgment was reversed, and at tbe April Term, 1951, judgment was entered in accord with tbe opinion of tbis Court, decreeing that said foreclosure proceeding and tbe deed executed pursuant thereto are in all respects void in so far as they attempt to convey tbe remainder interest of Elsie Bumpass Doggett in tbe *locus.*

Thereafter, tbe interpleaders filed a joint petition for betterments under tbe provisions of Gr.S. Ob. 1, Art. 30. Tbe defendant Elsie Bumpass Doggett appeared and demurred to tbe petition for that it fails to state a cause of action for betterments and on other grounds stated in tbe written demurrer filed, including tbe following:

“4. That tbe petition for betterments does not state facts sufficient to constitute a cause of action against tbe defendant, Elsie Bumpass Dog-gett, in that it does not appear that tbe interests of John D. Clay and Dee A. Clay have terminated by reason of tbe death of Maggie Bumpass, whereas it does appear upon tbe face of said petition that tbe petitioners *145John D. Clay and Dee A. Clay are still in possession of tbe premises therein described bolding under tbe life estate of Maggie Bumpass.”

In respect to tbe questions involved on tbis appeal Elsie Bumpass Doggett is tbe real defendant and Dee A. Clay and John D. Clay are tbe primary petitioners. Therefore, for convenience of discussion, she will hereafter be referred to as tbe defendant and they, as tbe interveners.

Tbe demurrer was sustained and petitioners appealed.

*R. B. Dawes, Beam & Beam, and Davis ■& Davis for interpleaders and petitioners.*

*Robert I. Lipton, A. A. McDonald, and Victor 8. Bryant, Jr., for defendant Elsie Bumpass Doggett.*

BaeNhill, J.

Tbe interpleader John D. Clay has no interest in tbe claim filed by Dee A. Clay, and Dee A. Clay has no interest in tbe claim of bis cointervener except such as may arise out of some warranty in bis deed of conveyance. Even so, tbe demurrer for that there is a misjoinder of parties and causes cannot be sustained. Tbis, for tbe simple reason tbe statute under which tbe interveners must proceed, General Statutes Cb. 1, Art. 30, requires that a claim for betterments be filed in tbe action in which judgment for land has been rendered. Proper pleading would require each group of interveners to file a separate and distinct claim uncomplicated by reference to tbe claim of tbe other. That may still be done — if tbis is tbe proper case in which to present tbe claims.

But tbe fourth cause for demurrer quoted in tbe statement of facts presents a more serious question, to wit: Have the claims of tbe inter-veners accrued so as to be presently tbe subject of litigation in tbis action ? To find tbe answer requires an examination of tbe law permitting an occupant of land to claim compensation for improvements placed thereon.

Under tbe ancient common law anyone who put improvements on real property did so at bis own peril. Tbe rule of tbe civil law was more liberal and permitted one who bad made permanent improvements on land in bis possession under tbe *bona fide*belief that be was tbe owner of it to exact of tbe true owner compensation for tbe improvements — to tbe extent they enhanced tbe value of tbe land — less reasonable rents and profits, before surrendering possession to tbe bolder of tbe superior title. 27 A.J. 262. See also 42 C.J.S. 421 *et seq.*

In tbe development of tbe law of equity tbe chancellors followed and extended tbe civil law rule so that, generally speaking, one who establishes a superior title to land is not permitted to recover possession thereof until and unless be pays tbe occupant bis claim, properly and promptly presented, for just compensation for improvements of a permanent nature placed thereon when obvious equity and principles of fair *146play demand it, on the conception that no man should be unjustly enriched at the expense of another who has acted in good faith. *Pritchard v. Williams,*176 N.C. 108; *Wharton v. Moore,*84 N.C. 479; 27 A.J. 262; 42 C.J.S. 421 *et seq.*

While this principle has been invoked under varying circumstances, it is ordinarily, if not exclusively, applied in cases where the occupant is in possession under the *bona fide*belief that he is the owner. *Faison v. Kelly,*149 N.C. 282.

In this State this phase of the law controlling the right of the occupant, holding under color of title believed to be good, to claim compensation for improvements of a permanent nature before surrendering possession to the holder of a superior title was reduced to statutory form in 1871. Oh. 147, Laws of 1871-72. This statute as amended, is now General Statutes, Ch. 1, Art. 30. It controls decision here.

“A defendant against whom a judgment is rendered for land may, at any time before execution, present a petition to the court rendering the judgment, stating that he, or those under whom he claims, while holding the premises under a color of title believed to be good, have made permanent improvements thereon, and praying that he may be allowed-for the improvements, over and above the value of the use and occupation of the land. The court may, if satisfied of the probable truth of the allegation, suspend the execution of the judgment and impanel a jury to assess the damages of the plaintiff and the allowance to the defendant for the improvements. In any such action this inquiry and assessment may be made upon the trial of the cause.”

This statute creates no independent cause of action. *Rumbough v. Young,*119 N.C. 567; *Wood v. Tinsley,*138 N.C. 507. It merely declares that: “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 he was the owner, the *increased*value he ought not to take without some compensation to the other.” *Merritt v. Scott,*81 N.C. 385; *Wharton v. Moore, supra; Wood v. Tinsley, supra; Pritchard v. Williams,*181 N.C. 46, 106 S.E. 144; *Rogers v. Timberlake,*223 N.C. 59, 25 S.E. 2d 167; *Harrison v. Darden,*223 N.C. 364, 26 S.E. 2d 860.

“The basis upon which betterments may be claimed is the finding by the jury that the person in possession, or those under whom he claims, believed at the time of making the improvements and had reason to believe the title good under which he and they were holding the premises.” *Wood v. Tinsley, supra.*

The wording of the statute clearly limits its application to possessory actions or actions in which the final judgment may be enforced by execu*147tion in tbe nature of a writ of possession or writ of assistance. And tbe right to claim compensation does not arise until tbe owner of a superior title asserts bis right of possession and obtains a judgment which entitles him to eject the occupant — though the last sentence would seem to permit the defendant to assert his claim in his answer and have an issue directed thereto submitted to the jury on the trial of the main issue. *Faison v. Kelly, supra;*42 C.J.S. 456.

The claim accrues when the owner seeks and obtains the aid of the court to enforce his right of possession. *Faison v. Kelly, supra; Merritt v. Scott, supra; Wharton v. Moore, supra; Justice v. Baxter,*93 N.C. 405; *Pritchard v. Williams,*176 N.C. 108; *Rogers v. Timberlake, supra.*The law awards to the owner the land and his rents and to the occupant the value of his improvements. *Harriett v. Harriett,*181 N.C. 75, 106 S.E. 221.

“A claim for betterments under the statute cannot be set up on the trial to resist the plaintiff’s recovery, but by petition filed under a judgment declaring the plaintiff the owner of the land.” *Wood v. Tinsley, supra.*The plaintiff who establishes a superior title is entitled to judgment for the land “but no writ of ouster should issue until defendant’s judgment for betterments is satisfied. *Altea v. Griffin,*22 N.C. 9.” *Bond v. Wilson,*129 N.C. 325; *Harriett v. Harriett, supra;*27 A. J. 282; 42 C.J.S. 470.

The sole question is : “How much was the value of the *property*permanently enhanced, estimated as of the time of the recovery of the same, by the betterments put thereon by the labor and expenditure of the *tona fide*holder of the same?” *Pritchard v. Williams,*181 N.C. 46; G.S. 1-346; 27 A.J. 273.

Many other states have adopted statutes controlling the right to, and prescribing the procedure for asserting, a claim for betterments. In those jurisdictions where the local statute does not provide otherwise, the great preponderance of cases on the subject are in accord with our decisions. See Anno. 44 A.L.E. 479, 89 A.L.E. 635, 104 A.L.E. 577.

A consideration of the pertinent statute and our decisions thereunder leads to the conclusion that the interveners now possess no claim for betterments presently enforceable in the pending action. The defendant has not asserted a present right of possession or sought a judgment of ouster. Indeed, she is not entitled to possession. All that she has done, through her motion in the cause, is to remove a cloud from her title to the remainder interest created by the foreclosure proceeding and the deed executed pursuant thereto. *Rumbough v. Young, supra.*

The interveners are in the rightful possession of the land and are entitled to the use of the improvements they have placed thereon. Until the life estate of Maggie Bumpass they now own falls in and the owner *148of the remainder becomes entitled to possession, there can be no judgment of ouster. At that time the right of possession may rest in someone other than the defendant. And furthermore, there may not then be any improvements on the land for which the true owner must pay.

It would seem to be clear, therefore, that the petition of interveners is premature and is made in the wrong action. They have no claim to assert. That claim will accrue when and if the remainderman, after the termination of the life estate, seeks to eject them from the premises. *Rumbough v. Young, supra.*

No doubt the petitioners will desire to keep the buildings they have erected on the premises in a state of good repair and insure them against damage or destruction by fire. If the parties are unable to reach a satisfactory agreement in respect thereto, the court below has the authority to enter such order as he may deem advisable for the protection of all the parties pending the termination of the outstanding life estate owned by petitioners.

The judgment entered in the court below is

Affirmed.