#### WILSON v. COUNTS.

1. Betterments. — Nonsuit properly refused, because there was some testimony tending to show that at the time improvements were made the owner thought he held a good title. *Divided Court.*

*2.*Charge — Homestead—Betterments.—Under the facts in this case, the request to charge, “that if the improvements were made on lands that had been assigned to the defendant for a homestead, then neither the plaintiff nor those through whom he claims, would have the right to recover a judgment against such homestead for improvements made thereon,” was properly refused.

Mr. Chief Justice McIver, *dissenting.*

Before Aldrich, J., Lexington, February, 1897.

Affirmed.

Action by Willis M. Wilson *v.*Mary J. Counts for betterments. Judgment for plaintiff. Defendant appeals.

*Messrs. Ragsdale & Ragsdale*and *C. M.*Efird, for appellant,

cite: *Motion for nonsuit should have been granted:*21 S. C., 101, 316; 31 S. C., 376; 23 S. C., 286; 29 S. C., 96, 303; 41 S. C., 158; Rev. Stat., 1952; 15 S. C., 552; 5 Rich., 598; 14 S. C., 35; 45 S. C., 283; 50 S. C., 39. *Can homestead be sold under jtidgment for betterments:*22 S. C., 312.

*Messrs. Meetze & M^dler, Wm. H.*Lyles, and *J. S. Mul*ler, contra.

The latter cite: *Homestead cannot be invoked against betterments:*19 S. C., 242; 45 S. C., 64; 43 S. C.,*219279. *Betterments in nature of partition with owner offee:*Rev. Stat., 1956.

April 1, 1898.

The opinion of the Court was delivered by

Mr. Justice Pope.

The plaintiff seeks relief here under what is known as the “Betterment Act.” In his complaint he alleges: That th'e defendant, in the case at bar, recovered from him a certain tract of land, containing two acres; that he, Willis M. Wilson, purchased the said two acres from one B. B. McCreery, who derived title through one W. P. Summer, who derived title through Ann R Stoudenmire. That said W. P. Summer believed when he bought said land that he ivas acquiring a good title, and that the price paid by him for said two acres was $150; and that he, believing that his title was good, made valuable improvements thereon by erecting thereon a large frame dwelling house of the value of $1,000, whereby the said land was enhanced in value $1,000, and he prays for judgment for $1,000 and costs. The answer admits that the defendant here recovered in her action therefor, the two acres of land, but denies that the said W. P. Summer, when he purchased the land, or when he erected the dwelling house thereon, believed that he had a good title to the same, and avers that W. P. Summer at all times knew that his title to said land was defective.

The action came on for trial before his Honor, James Aldrich, as presiding Judge, and a jury. At the close of plaintiff’s testimony, defendant moved for a nonsuit, which motion was overruled. At the conclusion of the testimony, and the charge of the Judge, the jury returned a special verdict wherein they found that the land, before any improvements were made, was worth $800, and fixing the value with improvements at $800. After entry of judgment on the verdict, the defendant appealed on two grounds. These grounds will be considered in their order:

*220
      1
      *219“1st. Because his Honor erred in refusing the defendant’s motion for a nonsuit — the plaintiff having offered no testi*220mony to sustain the cause of action set forth in his complaint. The specific grounds of this exception are as follows: The plaintiff’s action was ,to recover for ‘improvements’ alleged to have been made on the premises described in the complaint, by one W. P. Summer, under whom the plaintiff alleged that he claimed title, and that said Summer supposed and believed at the time that he purchased said premises, that his title was good in fee; whereas, the plaintiff not only failed to offer any testimony to show that said Summer supposed the title purchased by him to be good in fee, but did show, by his own witnesses, that the said Summer did not, at the time of his purchase nor at an}' other time, suppose br believe that the title purchased by him was good in fee, and hence a non-suit should have been ordered.” While the testimony of W. P. Summer and Mrs. Stoudenmire does go to support defendant’s contention, yet the testimony of other witnesses offered by plaintiff, respondent, was, to a certain extent, in the opposite direction. There is no rule of law by which a Circuit Judge, in deciding a motion for a nonsuit, can believe one set of witnesses and refuse to believe another; on the contrary, in cases on the law side of the Court below, this is the peculiar province of a jury. This Court has long since and many times announced that if there is any material testimony in support of a plaintiff’s cause of action, it is the duty of the Circuit Judge to refuse a nonsuit, and let the issues of fact be given to a jury. We have examined this testimony carefully, and must say, as the result of such examination, we are satisfied with the ruling of the Circuit Judge. The first exception must be overruled.

2 “2. The defendant excepts, because his Honor erred in refusing to charge the jury as requested by the defendant, ‘That if the improvements were made on lands that had been assigned to the defendant for a homestead, then neither the plaintiff nor those through whom he claims would have the right to recover a judgment against such homestead for improvements made thereon.’” The Cir*221cuit Judge stated, in passing upon this request: “Well, gentlemen, I cannot charge you that, because the allegations of the complaint and admissions of the answer, which are a part of the cause, in my opinion, leave no room for question of homestead to enter into the consideration of the case. I do not see where the question of homestead comes in the case. Counsel is entitled to have me pass upon the request to charge, and, for the reason stated, I must decline the request.” At first examination we were inclined to the opinion that the Circuit Judge had committed error in refusing the request, but more mature reflection leads us to conclude that no error was committed. The original action of Mrs. Counts against Willis M. Wilson, in which she recovered the possession of this lot of land, is made the basis of her claim to this property; it is so asserted in complaint, and it is admitted in her answer, and reference is made in the examination of one of the witnesses to the brief used on appeal in that case to the Supreme Court of this State. Such appeal is reported in the 45th S. C. Rep., at pages 571 to 574, inclusive, and, by the terms of the opinion in that case, as formulated by Mr. Justice Gary, it is made to appear that Mrs. Counts recovered the land from Wilson on account of a devise of such land to her under the will of her grand-father, Adam Stoudenmire, who died in 1864. There was no homestead law in this state at that time. It is quite probable that Adam R. Stoudenmire, who was Mrs. Counts’ father, had a life estate in the land. When, therefore, the witness, Mrs. Ann Stoudenmire, the mother of Mrs. Counts, referred in her testimony to the land being set apart to herself and daughter as a homestead, she had reference to some kind of proceedings taken in the lifetime of Adam R. Stoudenmire, who was the son of the devisor, Adam Stoudenmire. It is quite certain that no claim of homestead in said lands beyond the lifetime of said Adam R. Stoudenmire could have been said to exist. Is it not equally clear that the present appellant, Mrs. Counts, who is the defendant in' the action brought by Willis M. *222Wilson for betterment, could not set up a claim of homestead so as to defeat a claim for improvements placed upon her land by one who supposed he had a title in fee thereto? Look at the proposition in its baldness.' Here this Mrs. Counts had two acres of land, without the vestige of an improvement thereon, valued at the time at $150. W. P. Summer, who purchased from her mother, supposing he had a good title thereto, built a dwelling house thereon, that two witnesses valued at $1,500, but which the jury valued at $500. The present Constitution, in its language as set forth in section 28 of article III., says: “The General Assembly shall enact such laws as will exempt from attachment, levy, and sale under any mesne and final process,issued from any Court to head of any family in this State a homestead in lands * * * Provided further, That no property shall be exempt from attachment, levy, and sale for taxes, or for payment of obligations contracted for the purchase of said homestead, or personal property exemption, *or the erection or making of improvements or repairs thereon** * *” The General Assembly has passed appropriate legislation to secure a homestead to the persons entitled thereto. Then, too, it has enacted laws which secure persons purchasing lands, believing their titles to be in fee, who make improvements upon said lands, from loss for such improvements, when evicted by a person holding a superior title. The recent case of *Tumbleston*v. Rumph, 43 S. C., 275, states this legislation so clearly, it is needless to encumber this opinion with a repetition thereof. Why, then, should Mrs. Counts be allowed to reap where she had not sown? Under the “Betterment Laws,” she does not lose her land; she can pay for the improvements and keep the land; or she can allow the land to be sold and receive $300 for lands which were sold before the improvements were placed upon the land for $150. There is no hardship here. The Circuit Judge gave as the reason for his conclusion, that there was no place in the issues framed in the pleadings, for any question of homestead. There may be *223some virtue in the reason given by the Circuit Judge. But the views advanced in this opinion seem to go more directly to the root of the matter. This exception must be overruled.

The views of Mr. Justice Pope, concurred in by Mr. Justice Jones, are in favor of affirmance, while those of Mr. Chief Justic Mclver and Mr. Justice Gary are in favor of a reversal, of the Circuit judgment. By the Constitution of this State, in such cases provided,' the Circuit judgment stands affirmed.

Mr. Chief Justice McIver,

*dissenting.*I cannot concur in the conclusions reached by Mr. Justice Pope, for the following reasons: The plaintiff’s case rested entirely upon the allegation that W. P. Summer, under whom the plaintiff derived his title, supposed the title to the land to be good at the time he purchased the same. So far from there being any testimony to sustain this allegation, the plaintiff’s own witness, the said Summer, distinctly testified not only that he did not suppose the title to be good, but, on the contrary, that he knew at the time that the title was not good, and went on to explain why he was willing to accept a defective title. This witness having been offered by the plaintiff himself, he was not at liberty to discredit his testimony, and, therefore, there was error in refusing the motion for a nonsuit.

It seems to me, also, that appellant’s second exception, in regard to the homestead, should be sustained. The only judgment that could be rendered in favor of the plaintiff, under the betterment law, would be a judgment for the sale of the land, and no judgment against any other property of the defendant could be rendered. See act of 1885, incorporated in Rev. Stat. as sec. 1958. It seems to me, therefore, that appellant was entitled to have the jury instructed as requested; for if the land recovered by the defendant herein from the plaintiff herein, in the former action, had been assigned to the defendant herein as her homestead, then I do not see how such land could be ad*224judged to be sold, without violating the Constitution. The claim of the plaintiff cannot be regarded as an obligation contracted for the payment of improvements on the homestead, for there is no pretense that any such contract was ever entered into by the defendant herein. Nor do I see how any allegations in the pleadings could have been made in regard to the homestead. The question here is as to the judgment, and not as to any issues raised by the pleadings.

Mr. Justice Gary,

*dissenting.*I dissent, on the ground that the motion of nonsuit should have been granted.