
    Thompson vs. Thompson and another.
    Where a party-wrongfully retains the title to property, which he knows he ought to convey to another, he is not entitled to pay for improvements made thereon while he so retains the title; but such claim for improvements can be enforced by those who improve in good faith, believing that their title is good.
    In such a case where there was a joint occupancy of the property, and the improvements were made with the consent of the plaintiff, the party who made permanent improvements would be entitled to pay for them, if it appeared that such was the intention of the parties, when called upon to convey the legal title to the equitable owner.
    APPEAL from the Circuit Court for Dodge county.
    The complaint in this action alleged in substance that one of the defendants, Robert Thompson, was furnished by the plaintiff with the sum of $100, to purchase for him a tract of land to be selected by said Robert, and that said defendant purchased two forty acre lots of land in the town of Emmett, in Dodge county, with his own money, and eighty acres of land in the same town adjacent thereto with the money of the plaintiff, but took the title to the last mentioned eighty acres in his, defendant’s name without the knowledge or consent of the plaintiff, and that the plaintiff settled upon the said land and continued to occupy and cultivate the same until the commencement of this action, and has made certain valuable improvements thereon, specifying the same. That he had done most of tbe work of enclosing tbe two forty acre lots of tbe defendant Robert, with bis own money and bad assisted to fence tbe same into four or five lots and broken and put a portion of tbe same under cultivation; and that during tbe time tbe plaintiff has occupied said land purchased for bim, tbe defendant Fenton Thompson, bas resided with bim winters, and in 1860 moved on to said land and since then resided in tbe bouse thereon with tbe plaintiff, and that shortly thereafter tbe defendant, Fenton Thompson, commenced to exercise acts of ownership over tbe land and claimed to own tbe same in fee and denied tbe rights of tbe plaintiff in tbe premises; and that tbe defendant, Fenton Thompson, claimed to have purchased and obtained from the- defendant Robert Thompson a warranty deed of all tbe premises before mentioned, but that such conveyance was made with a knowledge of the rights of tbe plaintiff and with an understanding taat said Fenton Thompson should, when requested, convey to tlie plaintiff that portion purchased with bis money, but that be absolutely refuses to convey the same to tbe plaintiff. Tbe plaintiff prayed judgment that tbe title to said eighty acres should be declared by tbe court to be vested in tbe plaintiff, &c.
    Tbe defendant, Fenton Thompson, in answer to tbe complaint alleged that be bad no knowledge or information sufficient to form a belief as to whether said eighty acre tract of land was purchased with tbe plaintiff's money, by tbe defendant Robert Thompson and tbe title thereto taken in bis name without tbe knowledge or consent of the plaintiff. Tbe remainder of the answer related to tbe question of improvements made on said eighty acre lot, and alleged in substance that tbe defendant, Fenton Thompson, bad expended money and labor on said land and made thereby permanent improvements thereon, specifying tbe same, of tbe value of $55.0 over and above all legal set-offs or counter claims and that such money and labor were expended, and improvements made, with tbe full knowledge, consent and request of tbe plaintiff.
    
      A very considerable amount of testimony was read at tbe trial, and tbe case as stated in tbe complaint in regard to tbe purchase of tbe eighty acre lot in question and tbe conveyance to Fenton Thompson, was clearly made out, though tbe evidence showed that this and tbe other two forty acre lots were bought with gold, into which the bank bills of the plaintiff and the defendant Robert Thompson had been converted and the gold had all been put in one purse together. The plaintiff and defendants are brothers, and occupied the premises in question together at times, making improvements on the lot in question and the other forty acre lots, and the defendant, Fen-ton Thompson testified that the value of the improvements he had made on the lot in question with his labor and money, was about $550. Such other facts proved as are material to a proper understanding of the opinion of the court, are sufficiently stated therein. The circuit court granted the relief demanded by the complaint, decreeing the defendant Fenton Thompson, to convey the lot in question to the plaintiff and in default of his so doing that the title thereto should vest in the plaintiff by virtue of the judgment, and rejected the claim of the defendant Fenton Thompson for the value of improvements made thereon by him. This judgment did not make any provision as to the costs of the action, but subsequently the judgment was so amended as to charge the defendant, Fenton Thompson with the costs of the action. The defendant, Fen-ton Thompson, excepted to the finding and decision of the circuit court-and appealed therefrom.
    
      Enos & Hall, for the appellant,
    argued that on account of the commingling of the money, after it was converted into gold, if there was any resulting trust, it was such, as to an undivided one-half of the whole one hundred and sixty acres purchased, and that such view was strengthened from the fact that both parties went into possession of the whole and have been improving it in common. A resulting trust must flow from the transaction of purchase. Boyd vs. McLean, 1 Johns Cb. 587; Whiting vs. Gould, 2 Wis., 585; Getman vs. Getman, 1 Barb. Cb. 514; White vs. Carpenter, 2 Paige 238; 3 Paige 398. The plaintiff was not entitle! to the relief demanded without paying for the improven tents made on the land by the defendant 'Fenton Thompson; they were made with the knowledge and consent, and at the request of the plaintiff. 2 Story, Eq., § 799, b. § 1237; Putnam vs. Ritchie, 6 Paige 390 (^Sheldon vs. Sheldon, 3 Wis., 699. The court erred in adjudging all the costs against the appellant.
    
      Williams & Leonard, for respondent.
    The defendant, Fenton Thompson, was not in possession, believing his title to be perfect when he made the improvements, and therefore is not entitled to pay for them. 1 Story Eq., § 799, § 1237, note; Waterman vs. Dutton, 6 Wis. 276.
   By the Court,

Paine, J.

The evidence establishes beyond any question the resulting trust alleged in the complaint. The plaintiff furnished his brother Robert the money with which to buy this piece of land, upon the understanding that it was to be bought for the plaintiff. Robert, without the knowledge or consent of the plaintiff, entered the land in his own name, intending afterwards to convey it to the plaintiff The defendant, Fenton Thompson, took the title knowing these facts, and promising Robert to convey to the plaintiff the tract in question which was bought for him. This leaves no doubt of the plaintiff’s right to relief upon some terms, and the only question is whether lie should pay Fenton anything for improvements.

As a general rule a party who wrongfully retains a title which he knows he ought to convey to another, is not in a condition to claim pay for improvements. That claim belongs to those who improve in good faith, believing that their title is good: it was probably upon this ground that the court below rejected the defendant’s claim, and this would have been undoubtedly correct if the case had showed nothing more than that the defendant bad improved the property of bis own motion, without the express or partial request of the plaintiff. Perhaps this fact would have rendered the rule last stated inapplicable to the case, and entitle the defendant to compensation for whatever permanent improvements be bad put on the property, if the evidence showed such to have been the intention of the parties. But we are satisfied that such was not the intention, and that on the contrary, the defendant furnished whatever be did, partly by way of gift to his brother Paul, partly on account of having lived and boarded with the plaintiff from time to time, when not working elsewhere, and partly on account of the plaintiff’s labor and improvement on the other tracts belonging to the defendant. And taking the whole evidence upon these points, we are unable to say that the plaintiff ought, in justice, to pay the defendant anything on account of improvements.

Tbe judgment is affirmed, with costs.  