McKim v. Moody

Where land has been recovered in ejectment, and the defendant goes into chan-' eery, to obtain compensation for improvements, he will not succeed if he had notice of the plaintiff's title at the time of making the improvements.

This was an appeal from the court of chancery for the Richmond district, in which court William McKim filed his bill setting forth the following case: that an ejectment had been brought and a judgment obtained against him, by John Moody and Martha his wife, John Matthews and Sarah his wife, and others, which said female plaintiffs are the next heirs of Anne Moody deceased, who was devisee of James Swinton deceased: that the subject of the said suit, was a lot in the city of Richmond known by the number (644,) which was one of those known by the appellation of strap lots, under which denomination are included all the lots drawn as prizes in Byrd’s lottery, for which the tickets have not been discovered : that the only title set up by the lessors of the plaintiff was an adverse possession of James Swinton for twenty years, without interruption, and prior to the occupancy of the complainant; and on that ground alone the jury found for the plaintiff: that the complainant does not impeach the propriety of the verdict, but that there was no sufficient evidence proving that the said Swinton had ever enclosed the said lot; on the contrary it was proved, that it was a thoroughfare for waggons, &c. which had made a road through it about the year 1799 or 1800 : that, when the complainant came to the possession of it, it was unenclosed, and had been so for a long time before, and as he believed, unclaimed by any person : that it never was entered upon the books of the commissioners of the revenue, either in the name of the said Swinton, or of any person claiming under him: that the complainant took possession with the knowledge of the said Swinton, who asserted no claim to it, and made no opposition : that he contracted with the late William Nelson, the agent of Charles Carter the surviving trustee of William Byrd, for the purchase of the legal title, but subject to the ticket, if it should appear: that believing it improbable, after the lapse of so many years, that the ticket would ever itppear, the complainant commenced and completed expensive improvements on the said lot: that no permanent improvements had been made by him before this time; that during all this time, there was no intimation made to him of a claim on the part of the representatives of the said Swinton, nor was such claim ever made until after his improvements had been completed, a part of the lot which had been also expensively improved, had been disposed of, and real estate in the said city had greatly risen in value : that by the death of Charles Carter the agency of William Nelson ceased, and the complainant Was prevented from obtaining a conveyance of the legal title ; he, therefore, prays that the judgment may be in-joined, until an account can be taken of the value of the improvements on the ground recovered, and of the mesne profits thereof: that he may have a decree for any balance of the said account, which may be in his favor: that in default of payment thereof by a short day, the said piece of ground may he decreed to be sold, and but of the proceeds of the said sale, payment may be made to the complainant as aforesaid. An agreement, signed by William Nelson, jun„ W'as filed with the bill, by which the said Nelson, as agent for Charles Carter, trustee of William Byrd, acknowledges that he has sold to William McKim the legal title to lot 644, which is in the said trustee, but not the right of the holder of the ticket; and that the said McKim is to pay SS400 on the 1st of July, 1806, when the title is to be conveyed accordingly. The agreement is dated May 30 th, 1805. An injunction was awarded. The defendants filed their answer, denying that the lot in question was a stray lot; but, on the contrary, that they believed that James Swinton, under whom they claim title, wag ownep 0f the ticket which drew the said lot in Byrd’s lottery, and that the said ticket has been lost or destroyed. They admit, that in their suit at law, they relied on an adverse possession of more than twenty years: that there was the most abundant evidence, that Swinton had enclosed the lot, and kept it enclosed for many years; and that if he did not keep the whole lot enclosed, he did a considerable part of it, until the day of his death. They deny, that the whole lot was unenclosed in 1799 or 1800, when the complainant states that he took possession of it; that Swinton paid taxes for the lot; and that the question'of title is now definitively settled by the judgment at law : that they believe, that Swinton /enfthis lot to the complainant for a particular purpose; and he continued to hold it after Swinton’s death, and during the minority of his friendless daughter: that Swinton confirms this suggestion in his last will, and says, that the purpose being answered, the complainant was his tenant at will: that the contract with Nelson opposes no obstacle to the pretensions of the defendants : that Carter’s title was nothing more than the mere naked legal title, held for the person who had drawn the lot as a prize in the lottery, and can avail nothing in favor of the complainant, who has never obtained even that naked legal title, and does not pretend that he has ever paid one cent for it: that the complainant well knew, that the equitable title was outstanding in the holder of the ticket; and does not pretend that he ever was the owner of the fortunate ticket: that it is not true, that the improvements or any part of them were made by the complainant, without information of a claim to the lot on the part of Swinton’s representatives : that the only case, in which the improver of property not his own is entitled to compensation for improve-merits, is, where he has probable grounds at least to beHeve that he is improving his own properly, and is ignorant, at the time of making the improvements, of there being a better title in any other person ; which was not the case with the complainant. They, therefore, pray a dissolution of the injunction. Many depositions were taken on both sides, which go to establish or disprove the fact that McKim bad notice of Swinton’s title, at the time be put the improvements on the lot. There is some difference among the witnesses on the points, whether the lot was partially or entirely enclosed by Swinton j how long that enclosure was kept up, &c. It is presumed, from the event of the cause, that these questions of fact were decided in favor of the appellees ; and that it was considered that Swinton had an adverse possession of twenty years, of which title McKim had notice. The chancellor dissolved the injunction ; and an appeal was taken to this court.