Daily capital journal. (Salem, Oregon) 1903-1919, 1911-04-12
SUPREME COURT DECISION
Continued from page four.

value, which the owner is bound to
discharge before he can be restored
to his original rights in the prop
erty. In the opinion in that case Mr..
Justice Macarthur follows the views
expressed by Mr.. Justice Story in
Bright V. Boyd Story &C. c. 6O7.
In the first opinion in the latter case
Il Story 1922 he says, that the fact
that the defendant has stood by and
allowed the Improvements to be
made, without giving any notice to
the plaintiff of any defects in his
title, of itself constitutes ground of
relief "and the duty of compensa-
ton in such cases, at least, to the
extent of permanent increase of
value, is founded upon the construc-
tive fraud, or gross negligence, or
delusive confidence held out by the
owner" The same principle is fol-
lowed by Mr. Chief Justice Bean in
Kieffer V. Victor Land Co., SO Or.
174, III. Blackwell begins his dis
cussion of this question e Blackwell,
Tax Titles, Sec. 1OO9) by giving a
summary of the subject in which he
states that if the purchaser has act
ed in good faith in regard to his
little and the making of the improve
ments he should be allowed to put
the value of such Improvements
against any claim for rents or pro-
fits; and if, with improvements un-
tainted by bad faith, there co-eXists
negligence or bad conduct on the
part of the owner, in relation to the
tax entering into the cause of the
sale, the purchaser should in justice
recover the value of the improve
ments But where the owner has
paid the taxes or where the estate is
sold for taxes that the owner was
under no obligation to pay and that
he never is actually notified of the
mishap to his land until the tax has
ripened and the improvements are
made, it is manifestly unjust to
compel him to pay for the improve
ment; he is in no fault; that at COM
mon law the improvements could
only be recouped again the rents and
profits; that whatyer may be the
rule at common law, equity follows
to a great extent the principles Of
the civil law, and will permit a re-
covery, even after eviction, for the
amount that his improvements have
added to the value of the estate;
that equity will not allow the owner
of the paramount title to stand by
and let a bona fide holder make i'm
provements and then refuse to reim-
burse him. At Sec. 1912 he says,
that where one, believing that he
has title to a parcel of land, enters
and erects building upon it, and
the owner stands by and permits him
to go on with his Improvements with
out giving him any notice of the ad-
verse title, equity will decree to the
occupant compensation" To the
same effect is 1 Story, Ed. Jur. Sec
1888.
Thus it would appear that a pur-
chaser's right in equity to compen-
sation for his improvements depends
upon the owners knowledge, or his
duty to know, Of the tax and the pro
ceeding agaisnt his property and ac'
quiescance therein So also in
Story Eq. Jur. Secs. 1887 to 124l, ant
notes, the equitable remedy Is based
upon The principle of fraud. To the
same effect are Secs 799 and 79'
b. whore he cites Putnam " Richie
Palge 800, to the effect that equity
will uot give affirmative relief where
, there has been neither fraud nor ac
quiescenc on the part Of the owner
and rote to Sec. 1241 Pomeroys Ed
Jur. where it is said that to claim re
lief in equity "either the aid Of ;
court of equity must be requisite oi
, behalf Of the owner against whom
, the claim for reimbursement is made
50 that he can be compelled to d,
equity or else there must be som
) element of fraud in the transaction
as ground of equitable interference.
In keenan, V. Portland, q Or. 545
Mr.. Justice Moore says, that in tn
: absence of fraud the rule of cavea
e!npter applies TO purchasers at Ia
sales; that 1t is the duty Of the pur
: chaser at such sale to examine tn
proceedings authorizing the sale an
If he purchases thereat he does so o
his own Judgment. In note t
Pitt v. Moore, IN. c. in Am. s
Rep. (1SsS) p. 495, there is a yer
brief review Of the cases upon thi
uuestion and in referring To the opiI