
    Elijah Taylor v. Samuel C. Foster’s Adm’r et al.
    "Where tenants in common held real estate under a will which devised it to them in fee simple, but subject to the contingency that, if either of them died without issue, the survivor should take the whole estate, and one of them, having made permanent improvements on the land while the other was a minor and with knowledge of the character of the title, mortgaged his interest in the real estate to secure a loan of. money, and died without issue:
    
      JBeld, that the improvements passed with the land under the will to the surviving tenant, and that neither the land nor the improvements could be subjected under the mortgage to the payment of the mortgage debt.
    Civil action; reserved in the District Court of Preble county.
    The original action was brought to foreclose a mortgage given by Samuel O. Foster, in 1861, to secure the payment of a note for $700. The petition stated that Samuel C. Foster was dead, and made his administrator and Christina R. Simpson and her husband parties, averring that they, had an interest in the mortgaged premises. The defendants answered, that in 1850 Christina Reed died, seized in fee simple of the land mortgaged, and that she devised the same in fee simple to the children of her niece, Jane Foster, namely, John M. Foster, Robert R. Foster, Samuel C. Foster, James W. Foster, and Christina Reed Foster (since married to Alexander Simpson), but subject to the contingency, if any of said children “should die without issue, that the share or shares of such decedeut or decedents shall be equally divided among the survivors of them;” that the devisees survived the testatrix, but all of them died afterward, without issue, except the defendant, Christina R. Simpson, leaving her the sole owner of the mortgaged premises under the will, free from liability under the mortgage.
    The plaintiff demurred to the answer, and the case came to the Supreme Court, where the demurrer was overruled, and the cause was remanded to the District Court for further proceedings.
    In that court the plaintiff filed an amended petitiou, averring therein that, in 1859, John, Samuel and Christina survived of said children, and, being unmarried, lived as one family together on the mortgaged premises, held by them as aforesaid; that there being no suitable dwelling thereon, by mutual agreement, John and Samuel erected a dwelling house thereon of the value of $2,000, by means of their own labor, the products of the farm and debts incurred therefor; that Christina assented thereto and cooked for the workmen; that John died, and Samuel, with the assent of Christina, borrowed $700 of the plaintiff to pay said debts, and made the mortgage to secure the payment thereof; that the house was a necessary, permanent, ar?d valuable improvement on the premises, which Christina still continues to enjoy; that Samuel, when he built the house and executed the mortgage, believed that he, John, and Christina were equal joiut owners in fee simple of the land under said will, and by descent from James and Robert; that thereby Samuel had an equitable interest in the premises, to the amount of $1,500, which passed under the mortgage to the plaintiff-; that, after Samuel’s death, Christina and her husband admitted the lien of the plaintiff and promised to pay the debt; that the estate of Samuel C. Foster is insolvent; and claims that, to the extent of the value of the said improvement of said premises, he has a lien for the payment of the mortgage debt.
    The defendants demurred to the amended petition, which was overruled. Thereupon they answered, adopting their former answer, and stated that Robert died in June, 1852; John, in September, 1858; James in June, 1860; and Samuel in May, 1862; that the house was built in 1857, and completed in 1858, when Christina was under the age of sixteen years. They deny that the house was built under any agreement; that it was worth $2,000; and that Christina was consulted about, or that she ever assented to the building thereof, and deny that she ever promised in writing to-pay the note of her brother secured by the mortgage. They state that the house was built by her brothers, while-she was a minor, without consulting her, and that if she-cooked for the workmen building it, it was because she did the housework of the family, and cooked for anyone her brothers brought into the house. They deny that the-money was borrowed of the plaintiff with the knowledge- and consent of Christina; and, being ignorant of the use-made of it by Samuel, they deny that it was used to pay-debts contracted in building the house.
    The ease came on for trial in the District Court, where,, the testimony being heard and duly certified,it was reserved, for decision in the Supreme Court.
    The plaintiff testified that., after Samuel’s death, Christina gave him to understand that the money was borrowed tc pay debts incurred in building the house, and encouragement that she would pay the note by asking further time on it; but consulted a lawyer and then refused to pay it. He-proved by other witnesses that the house was built by John and Samuel; that the house was worth from twelve to fifteen hundred dollars; that the business was mostly done in John’s name, and materials for building were charged to> him; that after his death, Samuel, as his administrator, paid his debts, amounting to $717 above the assets of John’s estate — a large part of which were debts incurred in building the house; and that the money was borrowed for this purpose.
    The defendant, Christina, testified in substance as stated in the answer.
    A more full statement of the evidence is not deemed necessary, as it was regarded by the court of a character that required it to find the issues of fact made by the-pleadings in favor of the defendant; and, together with the foregoing statement and reference thereto in the opinion of the court, sufficiently presents the ease.
    
      
      Thomas Millikin and Hubbard $ Freeman, for plaintiffs:
    The question presented is: Whether Samuel C. Poster .■acquired any interest in, or claim to said premises, on account of the improvements he and his brother John put thereon, and whether by the mortgage he assigned such interest to Elijah Taylor.
    It is immaterial whether the identical money borrowed of Taylor can be traced into debts contracted on account of the building.
    
      The building was necessary. Samuel built it and paid for •it under a firm belief that he was a fee-simple owner and had a right to mortgage it.
    This gave him an equitable interest to the extent of the value of the improvements, and to that extent he had a right to mortgage, or otherwise to convey his said interest.
    The case falls clearly within the principles of the occupying claimant law, 1 S. & C. 881. Robinson's Lessee v. Ward, 5 West. Law Jour. 465; Collet, J., in Longworth v. Wolfington, 6 Ohio, 10; 1 Johns. Ch. 274; Bright v. Boyd, 1 Story, 478; S. C., 2 Story, 605; Hawkins v. Lowry, 6 J. J. Marsh. 55; Barlow v. Bell, 1 A. K. Marsh. 246; 4 Paige Ch. 58; Story Eq. Jur. 1237.
    And a court of chancery will enforce the principles of that law. Penrod v. Danner, 19 Ohio, 219; Glick v. Gregg, 19 Ohio, 65.
    And that statute is to be liberally construed. Lessee of Beardsley v. Chapman, 1 Ohio St. 121.
    But it is claimed that Samuel C. Poster is bound to know the character of his title, and quantity of his estate, as rshown in the recitals of his own title papers.
    It is doubted in the case in 1 Ohio St. 124, whether such .a rule ever applied to a person seeking the benefit of the occupying claimant law.
    A vendee of land goes into possession under a verbal contract and makes improvements. Although this case may be such as not to authorize a specific performance, yet a court of equity- will require compensation to be made for the improvements. Goodrow v. Lyon, 4 Porter, 297; Harvey 
      v. Pollard, 4 Humph 362; Hamilton v. Hamilton, 5 Litt. 28; McCampbell v. Same, 5 Litt. 92.
    Now in all the above eases it might have been said with equal propriety that the vendee was bound to know that his parol contract was void.
    “ The sale and conveyance must be in operation before a case is made for the statute to operate upon. The precise case contemplated by the statute is, that, where for some cause, though a deed be duly authenticated and recorded, it fails to convey title.” Longworth v. Worthington, 1 Ohio, 2.
    It is familiar law that “ one tenant in common can compel the others to unite in the expense of necessary reparations to a house or mill belonging to them.”
    The rule rests on the principle that where parties stand •cequali jure, equality of burden becomes equity. 4 Kent, 371, side paging.
    This rule will clearly extend to new buildings, especially where, as in this case, there is the implied assent of the other tenant, and where the new building was built, not only for improvement of the farm, but also far the personal comfort of both tenants.
    
    The fact of infancy of Christina makes no difference. The doctrine of estoppel applies to infants as well as adults in a case like this.
    But I-go further and claim that even if the estate of Samuel C. Foster was purely a life estate, and he knew that fact, still, as the building was necessary for the reasonable enjoyment of the estate, and was also beneficial to the estate in remainder, he should be allowed for such improvements, but without interest. 1 Greenl. Cruise, 180; 1 Vin. Abr. 185; Vern. 184 n. 1; 1 Wash. Real Prop. 94; 5 Rich. Eq. 301; 2 Story Eq. Jur. 1237 (ed. 1866, Redfield); 1 W. S. Eq. Dig., sec. 2, p. 423.
    If Samuel C. Eosterhad an interest such as we have above claimed, the mortgage to Taylor amounts to an equitable assignment thereof. It is not material whether the assignment is absolute or as security for a debt. Harkrader v. Leiby, 4 Ohio St. 602.
    
      
      Campbell § Gilmore, for defendants :
    If the decision of the Supreme Court in this case settles-anything, it settles this, “that each of the devisees derived title from Christina Reed, on the contingency of his or her dying without issue.” When Samuel C. Foster and Christina, his sister, lived, they did not inherit anything from their deceased brother, but still derived their title from Christina Reed, and when Samuel Crosby Foster died, Christina (his sister) inherited nothing from him. His death was-simply the removal of the last contingency between her and the fee simple of lands devised to her by Christina Reed, and from whom alone she derived any title.
    We maintain that it is of importance for the plaintiff to-prove that his money went into that house, in order to give-him any show of right to recover, and that after he has proved that important fact, there are yet insurmountable-obstacles in the way of his recovering his money of Christina. Some of these we will notice.
    “ The only absolutely certain estate held by Samuel C. Foster was an estate for his own life.” Upon his death the-estate in fee simple passed to Christina by way of executory devise. This is the decision of the court in this case-17 Ohio St. 170. That aman “can convey no greater estate than he has,” is an indisputable proposition.
    In addition to this, “an executory devise can not be-prevented from taking effect.” “This is the essential difference between an executory devise and a contingent-remainder.” 3 Greenl. Cruise, 451, top p.
    “ Nor can it be prevented or destroyed by any alteration whatsoever, out of which, or subsequently to which, it is-limited.” 4 Kent’s Com. 278, top p.
    It is true, that in this case the devise to Christina as-the last survivor is not entirely prevented from taking effect, but the same rule that will permit her to be deprived of any portion of the estate, if extended, will utterly destroy her estate.
    Here is an alteration, a change in the nature of her estate. The will of Ohistina Reed gives her an estate in fee simple by way of executory devise.
    If the court hold in accordance with the claims of the plaintiff, she takes nothing but an equity of redemption. “It ■'is a stable and inalienable interest, and the first taker has -only the use of the land pending the contingency mentioned in the will.” 4Kent’sCom. 279, top p. Can anything be plainer than this?
    ¡and had a right to mortgage it.”
    Counsel now present the case in its true light, as they understand it. They do not rely upon their mortgage, but ■make their strong point upon the right of the plaintiff'to recover under the “ occupying claimant law, 1 S. & C. 881; .and they claim that all the facts necessary to entitle the plaintiff' to recover under that law are admitted by the pleadings.
    If Samuel Crosby Foster was entitled at all to relief under the occupying claimantlaw, it was under the secondclass mentioned in the statute, where the occupant, “ being in •quiet possession and holding the same by deed, devise, etc.” ■S. & C. 881.
    Now, what is the relief granted a party thus holding possession? Is if that he can build houses thereon, mortgage the lands, aud thus wholly defeat the real owner of the land in his attempts to gain possession ? Certainly not. The occupying claimant law simply provides that the party thus holding possession of lands “shall not be evicted •■or turned out of possession by any person or persons who •shall set up and prove an adverse and better title to said land, until said occupying claimant, his, her, or their heirs ¡shall be fully paid the value of all lasting improvements.”
    This law is exclusively for the protection of the “ occupying claimant,” his or her heirs. It is a personal right, and is not transferable.
    If the court do find that such a right or interest can be .assigned, the court must certainly also find that possession must be transferred — for the first and chief fact constituting ■.a right to relief', under this law, is possession. The claimant must 6c in quiet possession. See statute. Without possession there can be no occupying claimant, and the law can not be made to apply in such a case. Admitting, however, that such an interest could be assigned or mortgaged, “ no such interest or right could possibly exist in this case.”
    
    There could not arise a contingency where the question-could be raised between the defendant, Christina, and Samuel Crosby Poster or his heirs, for the reason that while Samuel C. Poster lived, no person could set up and prove “an adverse or better title” than himself. If he had died, leaving “issue,” no one could setup and prove an adverse or better title than they to the undivided half of said premises.
    It is true, Christina is his legal heir, but she inherits-nothing from him, for the court has already decided that she holds the land by devise from Christina Reed, and there is no one in a position to set up a claim under the occupying claimant law.
    Let us go further, and suppose that the estate of Samuel C. Poster, instead of depending upon the contingency that he should die leaving issue, had been made determinable-upon a contingency that could have happened in his lifetime. Would he have been entitled to relief under the occupying claimant law ? We claim that he would not, for the following reasons:
    1. “He was bound to take notice of the recitals in the deed or other muniments under which he claimed.” Beardsley v. Chapman, 1 Ohio St. 121.
    2. The recitals (the provisions of the will) under which he claimed, show that “the only absolutely certain estate held by him was an estate for life.” Taylor v. Foster’s Adm’r et al., 17 Ohio St. 170.
    3. “A tenant for life obtaining his title and possession, with knowledge of the quantity of his estate, is not entitled to benefit of said statute against the reversioner or remainder-man.” Beardsley v. Chapman, 1 Ohio St. 118.
    But, say counsel, Samuel Crosby Poster was ignorant of his rights, “ that he built the house and paid for it under a firm belief that his estate was a fee simple.
    
      The belief of Samuel O. Foster can not affect the question. “Ignorantia facti exeusat; ignorantia juris non exeusat.”' Broom’s Legal Maxims, 185.
    It is claimed by counsel that there are exceptions to this rule, and we can well conceive a ease in which the exception might in equity be applied, as against the party who is-mistaken in the law, or those claiming under him, but we can not believe that a court of equity will permit a party to plead ignorance of law to the detriment of a third parly.
    In other words, a fee-simple estate, under an executory devise, can not be destroyed, or even diminished, by an act of one of the first takers, done in ignorance of his legal rights. “ It can not be prevented or destroyed by any alteration whatsoever, etc.” 4 Kent, 278, top p. “ The executory interest is wholly exempted from the power of the first devisee or taker.” 4 Kent’s Com; 278, top p.
    "We have not access to many of the authorities cited, but in those that we have examined, the question arose between the tenant in possession and the owner of the legal title, and the question was, “ What was the value of the improvements made by the tenant, while in possession under a claim or color of title ?”
    There is no reported case, to our knowledge, where the holder of a mortgage from a tenant, while in possession, has asserted his right to the benefit of the statute giving relief to occupying claimants, against the owner of the legal title.
    In the case at bar we have already insisted upon two-defenses :
    1. The improvements were made in the face of a life-estate only; and,
    2. The plaintiff was never in possession.
    We now suggest a third point, viz : Suppose the court should hold against us, and find that Crosby Foster could assign his equity to plaintiff by the execution of a mortgage, then this difficulty arises : The plaintiff’does not look to the value of improvements made by Samuel Crosby Foster, and can not expect to recover the value of improvements 
      alone ; he must go farther, and trace his money into those improvements.
    
    
      In conclusion, counsel have argued the case throughout as if the plaintiff were in possession, and we were seeking to evict him and turn him out of possession. Ve repeat, he has never been in possession, and possession is an indispensable requisite to entitle a party to the benefits of the occupying claimant law.
    
      By way of recapitulation, we claim :
    1. The plaintiff’ has failed to prove, by a fair preponderance of testimony, that a dollar of his money went into the improvements named.
    2. The mortgagor had no interest in the land that could he assigned by mortgage,
    3. If his interest were assignable, he could assign no greater interest than he had, to wit, a life estate.
    4. He could by no act of his destroy or diminish the estate of Christina R. Simpson, which is an estate in fee simple, uuder an executory devise.
    5. Neither plaintiff nor his mortgagor have ever been in a position to assert a claim to the benefit of the statute giving relief to occupying claimants, the plaintiff never having heen in possession, and his mortgagor having made improvements in the face of a life estate only.
    
      Thomas Millikin and Hubbard ‡ Freeman, in reply :
    Counsel for defendants say that no claim'can be set up under the occupying claimant law, because it is a mere personal right, and not transferable.”
    There is no reason or authority for the statement. The words “ his or her heirs,” are used in the statute, because the claim partakes of the realty, and would descend to the heirs, not to the administrator. But there can be no reason suggested why the occupying claimant, by mortgage, or otherwise, could not assign his claim.
    4. It is also claimed that Samuel C. Foster must have .transferred the possession to Taylor, in order to support Taylor’s claim. This is exceedingly technical. Samuel C. Foster was in possession when he made the improvements, and when he executed the mortgage. That is where his claim arose, and when he assigned it, he died possessed of the land. The mortgage was not an absolute assignment; it ■simply gave a lien on his interest. Samuel C. Foster’s •claim was created when he made the improvements, did he lose it because, or when, he died ? If the claim was ever •a valid one, how, or when, was it lost? The statute must ■receive a liberal construction. Per Collet, J., 6 Ohio, 10.
    The statute provides for suits at law when the party is in possession, and is about to be turned out. But suppose a party is ousted otherwise than by legal process, does he lose his claim for improvements ? Would a court of equity tolerate this ?
    5. Counsel does not correctly quote the law as laid down in Lessee of Beardsley v. Chapman, 1 Ohio St. 124, where he says, “ He was bound to take notice of the recitals in the deed or other muniments under which he claimed.” The court does say this is the general rule, but doubt whether it is applicable to persons seeking the bmefit of the occupying claimant law. ' t
    
    The court further say, that if the rule does apply at all, it can only apply to the deed of the claimant’s grantor. In the case cited, 1 Ohio St., the recitals in the deed showed that the claimant, for improvements, had only a curtesy, yet he toas paid.
    
    Samuel C. Foster mu3t have known that he had only .a life estate ; he must have known the fact. It is a question of bona fides, and embraces knowledge of the law as well as of fact. The Supreme Court of Ohio have gone very far toward abolishing the absurd distinction between ignorance of lato and of fact as furnishing ground for relief in equity. McNaughten v. Partridge, 11 Ohio, 232; Evarts v. Strode, Adm’r, Ib. 480, 486.
    Defendants’ counsel say we must, in order to recover, trace our money into the building. Not so; it is not a case ■of vendor’s lien or mechanics’ lien under the statute. The lien of Samuel C. Foster was created by building the house in the belief that he owned the land. This lien he assigned? by a mortgage, to Taylor; without the mortgage, Taylor would not be in privity.
   Day, J.

The plaintiff seeks to subject the real estate in-question to the payment of his claim against the estate of Samuel C. Poster, deceased. He claims the right to do it through the mortgage given by the decedent to secure the-note on which the claim is based. The mortgagee can> claim no greater estate than that of the mortgagor. What, then, was the interest of Samuel C. Poster in the premises?' It was held when the case was before this court on a former occasion (17 Ohio St. 166), that he had, in common with his sister, Christina, an estate in fee simple, but determinable, nevertheless, as to each of them, on the contingency of his or her dying without issue; and that at his death his-contingent estate passed to his sister, Christina R. Simpson, the defendant, by way of executory devise, under the-will of Christina Reed, from whom the estate came.

But it is now claimed, under an amendment of the petition, which has since been made, that Samuel C. Poster?, the mortgagor, had an equitable interest in the mortgaged premises for improvements made thereon by him, which may be enforced against the land, either under the occupying claimant law, or by virtue of an equitable liability of his tenant in common, who has come into the full enjoyment of the property.

As to the first ground of the claim, it is only necessary to say, that the facts of the case do not bring it within the-provisions of the “act for the relief of occupying claimants-of land.” Nor do we think there is shown any equitable-ground, upon which the land can be subjected for the payment of improvements made by Samuel C. Poster. They were not of a character which one joint tenant may, as of right, charge upon the other as necessary repairs; nor does-it appear that anything was done to render the sister otherwise liable for improvements, much less to make such liability a charge upon the land. On the contrary, she was a-minor incapable of contracting; and, for aught that appears, it was contemplated that the improvements should become part of the common estate and follow its destiny,, or be subject to future negotiations.

But it is claimed that the improvements were made by Samuel C. Foster, in good faith, believing himself to be a joint owner of the land, and that, therefore, on principles of natural justice, he had an equitable interest in the land to the amount of one-half of the value of the improvements.. The principle relied upon is undoubtedly recognized by courts of equity when resort is had to them for relief against a party in possession of land, who has made improvements under a belief of ownership of the land; for, in such cases, a party seeking equity must do equity. But this is not that ease: here a party, at best, standing in the shoes of a tenant out of possession, invokes equitable relief. In Putnam v. Ritchie, 6 Paige, 390, Chancellor Walworth said, that he had not “been.able to find any ease, either in this country or in England, where the court of chancery had assumed jurisdiction to give relief to a complainant, who has made improvements upon land, the, legal title to which was in the defendant, where there has been neither fraud nor acquiescence on the part of the latter after he had knowledge of his legal rights.” Corbet v. Laurens, 5 Rich. Eq. 301

Judge Story, however, in Bright v. Boyd, 1 Story, 478, and same case, 2 Story, 605, strenuously maintains the doctrine of the civil law, in favor of granting relief to a complainant, who has made lasting improvements on land in good faith, without notice of the defective title, by compensating him for such improvements,.after makiug fair deductions from the value thereof for the rents of the property. But, although this would seem to be against the weight of authority, it is not necessary to decide the-question in this case; for it is well settled that no compensation can be had in equity where the improvements-are made with notice of the true state of the title. It can not be said, in this case, that the persons who made the improvement were without such notice. On the contrary, they knew its nature, and, to say the least, were sufficiently advised of its character to put them on their guard as to its true legal effect. Undoubtedly, Samuel C. Foster regarded himself in some sense as the owner of the' land, but he knew equally well that his sister was in the same sense also a like owner of the land. Each had a life estate certain, with the prospect of its ripening into an unlimited fee of one-half on having issue, or of the whole on surviving the other dying without issue. And there can be little •doubt but that it was contemplated that the improvements should follow the contingent course of the land, without an accounting in relation thereto, or in regard to the rents of the land. At all events, nothing appears to the contrary but that the improvements were made in full view of all the contingencies of the case ; nor does it appear that the •defendant, with a knowledge of her rights, did anything to charge herself or the land with the improvements. It results that the mortgagor had no special equitable interest in the land separable from that which, at his death, passed under the will of Christina Reed to the defendant, Christina R. Simpson. The plaintiff, therefore, has no interest left under the mortgage that can be enforced against the land; nor has he acquired any right through the defendant to subject the land to the payment of his debt. It follows that the petition must be dismissed.

Judgment accordingly.  