#### J. A. PRITCHARD et al v. D. E. WILLIAMS.

(Filed 19 November, 1919.)

1. Appeal and Error — Opinion of Court — Issues—Damages.

The opinion of court in tliis case, granting a new trial, suggests that the . issue might be amended to read, “To what amount is the value of plaintiff’s premises increased by such permanent improvement?”

2. Damages — Permanent Improvements.

Where on the issue for damages the question of permanent improvements enters, such question is a mixed one of law and fact, depending largely upon the circumstances of each case, and the measure of compensa*445tion is the actual enhancement in the value of the lands by reason of the improvements made thereon.

3. Appeal and Error — Anticipating Error.

Upon granting a new trial on appeal, the Supreme Court will not ordinarily pass upon matters not presented therein, in anticipation of the law as the Superior Court judge may thereafter rule it to be.

Allen, J., dissenting.

PetitioN to rehear the opinion in this case, 176 N. C., 108.

D. H. TiTlett and Meehins & McMullan for plaintiffs.

Aydlett, Simpson & Sawyer, R. G. Dozier and Ehringhaus & Small for defendant.

CiARK, C. J.

This is a petition to rehear the well considered opinion, 176 N. C., 108, delivered by Brown, J., for a unanimous Court, at Fall Term, 1918.

After the fullest consideration, we think that our former opinion should be adhered to in every respect, and for the reasons therein so convincingly set forth. Issue three suggested in the addenda to that opinion, “What is the value of such permanent improvements?” we think might be amended in accordance with the provisions of Eev., 656, to read, “To what amount is the value of the premises increased by such permanent improvements ?” though doubtless the trial judge would, without this suggestion, have instructed the jury that such was the meaning of the issue suggested.

Under the provisions of Eev., 494, the plaintiff filed in this cause a bill of particulars as to the permanent improvements for which he sought compensation. We do not think that in this case, in which we have reversed the nonsuit below, we need pass upon what are and are not permanent improvements. What are permanent improvements is a mixed question of law and fact, depending largely upon the circumstances of each case, and the instructions of the court, if excepted to, will come up on appeal. Some improvements, which might be deemed permanent in certain surroundings, would be of no value in other circumstances, because unsuitable for the ordinary use of the property.

The measure of compensation is nowhere better discussed than in 14 E. C. L., p. 25, sec. 15, in the course of which it is said: “The measure of compensation is not the original cost of the improvements, but the actual enhancement in the value of the land by reason of the improvements made thereon.”

*446The question raised in tbe plaintiff’s brief as to tbe restriction or enlargement of damages and rental values (Rev., 654) by reason of tbe life estate may or may not arise on tbe trial. It is not, and cannot be, presented by tbis appeal, and it would be supererogation to instruct tbe judge below upon a matter as to wbieb bis ruling may be satisfactory on tbe trial, if upon tbe evidence a ruling should be called for.

Petition dismissed.

AlleN, J.,

dissenting: Wben tbe former appeal in tbis action was before tbe Court we said, “Tbe verdict, wben considered in connection with the charge, also establishes that neither tbe defendant nor any one under whom he claims is a purchaser for value.” Pritchard v. Williams, 175 N. C., 321.

We must then deal with tbe defendant as a volunteer and not as a purchaser.

Tbe defendant admitted, while a witness in bis own behalf, that be was told before be bought be would buy a lawsuit, and be said be made no further inquiry.

I understand tbe law to be as stated in Ijames v. Gaither, 93 N. C., 361, and many other cases, that “whatever is sufficient to put a party on inquiry, be is presumed to have notice of every fact and circumstance which a proper inquiry would enable him to find out. 1 Story’s Jurisp., par. 400; Blackwood v. Jones, 4 Jones Eq., 54.”

Tbe party who told tbe defendant be would buy a- lawsuit is tbe one by whom tbe trust was established, and tbe defendant, on bis own admission, could have learned of tbe rights of tbe plaintiffs by a simple inquiry, and, if so, tbe law says be took bis deed with notice of tbe trust.

“Tbis doctrine of betterments, and tbe principle upon which it was originally made to rest, is very well stated by Ashe, J., in tbe case of Wharton v. Moore, 84 N. C., 482, as follows: ‘This right to betterments is a doctrine that has gradually grown up in tbe practice of tbe courts of equity, and, while it has been adopted in many of tbe States, it is not recognized in others. But it may now be considered as an established principle of equity that whenever a plaintiff seeks tbe aid of a court of equity to enforce bis title against an innocent person who has made improvements on land without notice of a superior title, believing himself to be tbe absolute owner, aid will be given him only upon the terms that be shall make due compensation to such innocent person to tbe extent of tbe enhanced value of tbe premises by reason of tbe meliora-tions or improvements, upon tbe principle that be who seeks equity must do equity.’ Here it will be noted that tbe claimant must be an innocent person, and in any correct statement of tbe principle will be found tbis or some equivalent requirement indicating that tbe occupant made tbe expenditures in good faith — that is, that be believed, and bad reasonable *447ground to believe, at the time they were made, that he was the true owner.” Alston v. Connell, 145 N. C., 4.

It also appears that the defendant was the owner of a life estate at the time he made the improvements, and, “It is the general rule that a life tenant is not entitled to compensation from the remainderman for the enhancement of the property by reason of his improvements, nor can a charge upon the lands or the inheritance be made for such improvements, it being generally held that a life tenant does not come within the purview of the betterment or occupying claimant’s acts. The reasons for this rule are that the life tenant should not be permitted to consume the interest of the remainderman by- making improvements that the remainderman cannot pay for, or that he does not desire, and, also, that improvements are made for the immediate benefit of the life estate, and usually without reference to the wishes of the remainderman. Mere knowledge on the part of the remainderman that improvements are being made and passive acquiescence therein are not sufficient to charge him with the cost thereof.” 17 E. C. L., 635.

Smith, C. J., said, in Merritt v. Scott, 81 N. C., 387: “We think it clear that improvements of any kind put upon land by a life tenant during his occupancy, constitute no charge upon the land when it passes to the remainderman. He is entitled to the property in its improved state, without deduction for its increased value by reason of good management, or the erection of buildings by the life tenant, for the obvious reason that the latter is improving his own property and for his own present benefit. This proposition is too plain to need the citation of authority.”

This rule has only been relaxed in favor of a purchaser who made the improvements in good faith under a deed purporting to convey the fee, which he accepted under the advice of learned counsel (Faison v. Kelly, 149 N. C., 285), and not in behalf of one, who is not a purchaser for value, and who took his deed with notice of the trust.