#### J. P. JENKINS v. CARRIE STRICKLAND and VULAH MAY

(Filed 23 November, 1938.)

1. Partition § 3: Betterments § 7—

Upon general principles of equity, recognized even prior to the enactment of C. S., 699-710, a tenant in common making improvements is entitled to have allotted to her in an actual partition the part of the property improved, and its value assessed as if no improvements had been made.

*4423. Mortgages § 15: Betterments § 5—

Improvements placed on the land by a mortgagor become additional security for the debt, and the mortgage covers all improvements to which the mortgagor would have been entitled had the mortgage not been executed, but not those to which the mortgagor would not have been entitled.

3. Same — Where tenant making improvements owns encumbered and unencumbered interests she is entitled to improvements as to unencumbered interest.

S. owned an undivided one-sixth interest in the locus in quo by inheritance as tenant in common with the five other heirs. Three of the other tenants conveyed their interests to her husband, and a fourth conveyed his interest to her and her husband as tenants by the entirety. S. and her husband thereafter mortgaged the two-thirds undivided interest purchased from the other heirs, leaving S.’s share by inheritance and the share of another heir unencumbered. After the death of her husband, S. made improvements on the land. The mortgage was thereafter foreclosed and the property subject thereto purchased at the sale by plaintiff. Held: At the time S. made the improvements she owned the share which descended to her unencumbered, and another share by survivorship subject to the mortgage, with dower interest in the interests held by her husband individually, and upon partition of the property she is entitled to have her one-sixth interest by inheritance allotted to her with the improvements and assessed as though the improvements had not been made as against plaintiff, purchaser at the sale, and the remaining heir, but subject, however, to a charge of one-sixth of the value of the improvements in favor of plaintiff, since at the time of making the improvements plaintiff was mortgagor with her husband as to the one-sixth interest held ' by them by the entirety.

4. Costs § 3—

Where it is determined on appeal to the Supreme Court that claimant is entitled to improvements claimed in partition proceedings, claimant is not to be taxed with the costs of trial in the Superior Court involving her claim. C. S., 1225.

Appeal by defendant Carrie Strickland from Thompson, J., at September Term, 1938, of EbaNiclik.

Special proceeding for partition of land.

Tbe facts are substantially these: Upon the death of Shemuel McGhee, seized and possessed of the land in question situate in Franklin County, North Carolina, title thereto descended to his six children: C. C. McGhee, Ira McGhee, Eonnie McGhee, H. E. McGhee, and the defendants, Carrie Strickland and Yulah May. 0. 0. McGhee, Ira McGhee and Eonnie McGhee conveyed their three-sixths undivided interests in said land to II. L. Strickland, the husband of the defendant Carrie Strickland, and H. F. McGhee conveyed his one-sixth undivided interest to H. L. Strickland and wife, Carrie Strickland, as tenants by entirety. The defendants each now own the said interest each inherited as above stated.

*443On 8 February, 1928, H. L. Strickland and wife, Carrie Strickland, for the purpose of securing a note due to the Citizens and Commercial Bank of Franklinton, North Carolina, executed and delivered a deed of trust to W. L. Lumpkin, trustee, conveying two-thirds undivided interest in the land in question, which two-thirds interest was specifically described as being the shares purchased by H. L. Strickland and wife, Carrie Strickland, from O. C. McGhee, Ira McGhee, Fonnie McGhee and H. F. McGhee, four children of the late Shemuel McGhee. H. L. Strickland died 13 February, 1932, leaving surviving his widow, the defendant, Carrie Strickland, and children as his heirs at law. Thereafter, on 7 May, 1931, at foreclosure sale by W. L. Lumpkin, trustee, under said deed of trust, the plaintiff became the purchaser, and the trustee executed deed to him conveying the said two-thirds undivided interest in said land.

Plaintiff petitions for partition, and that defendant Carrie Strickland account to him for rents for year 1937. The defendant Carrie Strickland,, who has been in possession of the land since the death of her husband, avers that she has made valuable improvements upon the land and prays that, upon partition, same should be taken into consideration. Plaintiff denies her right thereto.

The cause was transferred to the civil issue docket for trial, and was tried upon these issues, which were answered by the jury as follows:

“1. Did Mrs. Strickland, the defendant, make any permanent improvements on the land in question subsequent to the death of her husband, H. L. Strickland, on 13 February, 1932, and prior to the mortgage sale to plaintiff on 7 May, 1937 ? Answer: ‘Yes.’

“2. How much, if any, was the value of the property substantially enhanced by such improvements? Answer: ‘$675.00.’

“3. What is the annual rental value of said property ? Answer: ‘$100.00.’ ”

Upon verdict, defendant Carrie Strickland tendered judgment adjudging in part that, upon actual partition, she be allotted land of the value of $675, and one-sixth in value of the remaining lands, and that lien thereon be declared in favor of plaintiff in the sum of $110.94 for his share of rents and profits for years 1937 and 1938. The court declined to sign the same. Exception.

Thereupon the said defendant tendered judgment declaring in part that she be allotted land equal to one-sixth in value of the whole tract, and that the part so allotted to her include that part of the land which she has improved, assessing its value as if no improvements had been made. The court declined to sign same. Exception.

The court signed judgment remanding the cause to the clerk of the Superior Court of Franklin County and directing that the said clerk *444appoint three commissioners to divide the land among the tenants in common, allotting to plaintiff four-sixths in value as improved and to defendants Carrie Strickland and Yulah May, each, one-sixth in value, and that J. P. Jenkins recover of the defendant Carrie Strickland the sum of $110.94 for rents and profits, and of the defendants the costs incurred in the trial of the cause in the Superior Court. Defendant Carrie Strickland appeals therefrom to the Supreme Court, and assigns error.

White & Malone for plaintiff, appellee.

Edward F. Griffin and Yarborough & Yarborough for defendant, appellant.

"WiNBORNE, J.

(1) Is defendant Carrie Strickland, upon the facts presented in the record on this appeal, entitled to have her share so allotted as to include the part on which she has made improvements, valuing it as if no improvements had been made? (2) Is there error in taxing defendants with cost of trial in Superior Court? These questions are determinative of this appeal, and must be answered in the affirmative.

(1) If one tenant in common makes improvements upon the common property he will be entitled, upon actual partition, to have that part of the property which he has improved allotted and assigned to him, and its value assessed as if no improvements had been made, if this can be done without prejudice to the interests of his cotenants. This equitable principle has been applied and is well established in the decisions of our Court. Pope v. Whitehead, 68 N. C., 191; Collett v. Henderson, 80 N. C., 337; Simmons v. Foscue, 81 N. C., 86; Cox v. Ward, 107 N. C., 507, 12 S. E., 379; Pipkin v. Pipkin, 120 N. C., 161, 26 S. E., 697; Holt v. Couch, 125 N. C., 456, 34 S. E., 703; Daniel v. Dixon, 163 N. C., 137, 79 S. E., 425; Fisher v. Toxaway, 171 N. C., 547, 88 S. E., 887; Layton v. Byrd, 198 N. C., 466, 152 S. E., 161; Daniel v. Power Co., 204 N. C., 274, 168 S. E., 217.

This right was recognized before the enactment of the statute relating to betterments (Public Laws 1871-72, ch. 147; C. S., 699-710), and is not based upon it, but rests upon general principles of equity. Jones v. Carland, 55 N. C., 502; Pope v. Whitehead, supra; Holt v. Couch, supra; Layton v. Byrd, supra.

While it is conceded that this principle is too well imbedded in our law to admit of debate, appellee contends that it is not here applicable for that at the time the improvements were made by the defendant Carrie Strickland the relationship of mortgagor and mortgagee existed between her and the trustee under whom he claims, and that the right *445for claim for betterments is not conceded to mortgagors as against mortgagees. He relies upon tbe cases of Wharton v. Moore, 84 N. C., 479; Belvin v. Paper Co., 123 N. C., 138, 31 S. E., 655; Layton v. Byrd, supra.

These cases enunciate tbe well settled principle that if a mortgagor, or anyone standing in bis place, enhances tbe value of tbe mortgaged premises by improvements, they become additional security for tbe debt, and tbe mortgagor can only claim tbe surplus, if any, upon tbe mortgage sale being made, after satisfying tbe debt. Brown v. Land Bank, 213 N. C., 594, 197 S. E., 140.

In Belvin v. Paper Co., supra, it is said: “Tbe general rule is that whatever improvements a mortgagor puts upon tbe mortgaged property inures to tbe benefit of tbe mortgagee, or, more clearly speaking, is additional security for tbe debt. But this is upon the idea that the mortgagor is at least the equitable owner of the fee in the land; that be is entitled to tbe legal as well as equitable title upon tbe payment of tbe debt, and that such improvements are his and are made for his benefit, and that they increase tbe value of his property.” (Italics ours.)

Tbe first beadnote epitomizes tbe bolding of tbe Court in tbe Belvin case, supra, in this language: “A mortgagee is entitled to everything conveyed that belonged to tbe mortgagor at tbe time, and to any improvements placed upon tbe property since that time, that tbe mortgagor would be entitled to if tbe property bad not been mortgaged; but tbe mortgagee is not entitled to improvements that tbe mortgagor would not have been entitled to if tbe property bad not been mortgaged.”

Applying this principle, what then would have been tbe right of Carrie Strickland, upon partition proceeding, with respect to tbe improvements placed by her on tbe common property, if there were no lien of deed of trust ?

In considering this question it is important to note tbe status of tbe title after tbe death of H. L. Strickland when tbe improvements were made. Upon bis death tbe three-sixths undivided interest which be owned individually descended to bis children, Morton v. Lumber Co., 178 N. C., 163, 100 S. E., 322, subject to tbe right of dower of bis widow, Carrie Strickland — all subject to tbe lien of tbe deed of trust; and tbe one-sixth undivided interest held by him and bis wife, Carrie Strickland, by entirety, vested in her by survivorship, subject also to tbe lien of tbe deed of trust. At that time Carrie Strickland and Yulab May each owned, unencumbered, tbe one-sixtb inherited by them from their father.

If, then, there were no deed of trust, Carrie Strickland, under tbe well settled equitable principle, would have tbe right as against tbe children *446of H. L. Strickland and as against Yulab May, ber co-owners, to bave allotted to ber two-sixths of tbe land, including tbe part improved, valued as if no improvements bad been made. Pope v. Whitehead, supra, and other cases above cited. But, there being a deed of trust which affected tbe one-sixth she acquired by survivorship, and of which she was tbe equitable owner of tbe fee, she loses ber right to improvements to tbe extent that tbe improvements made increased its value. Wharton v. Moore, supra; Belvin v. Paper Co., supra; Layton v. Byrd, supra. Yet she is entitled to tbe benefit of improvements in so far as tbe other three-sixths covered by tbe deed of trust and tbe one-sixth owned by ber codefendant are concerned. Tbe improvements increased tbe value of tbe whole property. Tbe jury having assessed tbe value of tbe improvements at $675, tbe improved part of tbe land which defendant Carrie Strickland is entitled to bave assigned to ber is rightly chargeable in favor of tbe plaintiff with one-sixth of that amount.

Plaintiff insists, however, that tbe decision in Layton v. Byrd, supra, is conclusive of tbe case in band and bars any right of defendant Carrie Strickland to compensation for tbe improvements. An attentive examination of tbe facts in that case, however, reveals marked difference from tbe facts here involved. Byrd, after taking title from R. L. Godwin, H. Fleishman and B. Fleishman, tenants in common, when there was an outstanding deed of trust duly registered against tbe Godwin interest, made improvements upon tbe land. Layton bought at tbe sale under foreclosure of this deed of trust. In partition proceeding Byrd demanded allotment of bis interest to include tbe improved portion valued in its unimproved condition. Adams, J., speaking for tbe Court, said: “Byrd made tbe improvements on tbe land after be bad received their deed and bad succeeded to their rights. At this time be was tbe sole owner of tbe land, subject to tbe lien of tbe mortgage. There was no co-owner against whom be could assert tbe equity on which be now relies. He and tbe mortgagee were not tenants in common.” In tbe instant case, at tbe time tbe improvements were made there were co-owners against whom Carrie Strickland could bave asserted ber equitable right.

(2) Tbe right asserted by Carrie Strickland for tbe value of improvements being here sustained, she is not to be taxed with tbe costs of tbe trial in Superior Court involving ber claim. C. S., 1225.

Tbe judgment below will be modified in accordance with this opinion.

Modified and affirmed.