Mills v. Geer , 52 L.R.A. 934 ( 1900 )

Lumpkin, P. J.,

concurring specially. I concur in the judgment of reversal, because of the error dealt with in the second headnote and in the corresponding division of' the preceding opinion. I also assent to the propositions laid down in the third and fourth headnotes, but dissent from the ruling announced in the first headnote. In so far as the improvement act of 1897 undertakes to deal with the subject of compensating bona fide purchasers of realty whose titles foil for improvements made after its passage, it may be wise, beneficial, and constitutional. To this extent, and to this extent only, so far as I have been able to ascertain, do most of the authorities, including some of those cited by Mr. Justice Lewis, go. In so far as this act relates to improvements made before its passage, I can not help regarding it as retroactive legislation injuriously affecting vested rights. It can not be questioned that, before the enactment of this statute', the owner of land could recover it from one who had made improvements thereon in the honest belief that bis title was good, without becoming liable to the defendant on account of such improvements further than to submit to his right to set off the value thereof against the plaintiff’s claim for mesne profits. That this was the settled law and policy of this State is left absolutely free from doubt by the decision of this court in Dudley v. Johnson, 102 Ga. 1. It was there distinctly and unequivocally held that: “Neither in an action of ejectment nor in complaint for land can a defendant set off the value of improvements placed thereon by him, to an amount beyond the sum which the plaintiff would be entitled to recover by way of mesne profits; nor can a defendant in such a case, upon an equitable answer, recover against a plaintiff the value of improvements in good faith placed upon the premises by such defendant, and have the same, by equitable decree against the owner, made a charge upon the premises on which they are placed and from which the defendant is evicted under a judgment rendered against him in such suit.” The ruling announced in the language just quoted would, but for the act of 1897, surely be decisive of the alleged right of the defendant, to claim compensation for improvements “beyond the sum which the” plaintiffs “would be entitled to recover by way of mesne profits.” Indeed, with that act out of the way, it must be conceded that the point ruled on in the Dudley case would be identical with that with which we are now' dealing in the case before us. I can not divest myself of the conviction that this act gives to defendants in actions for land a new cause of action — one which they did not have before. It certainly gives them a right to recover of plaintiffs money which they could not have recovered but for the act. I say “recover” because allowing a set-off is, in substance, allowing a recovery. If subjecting one to a liability which could not previously be set up against him does not injuriously affect his rights, I am unable to see w'hy it does not.

This case belongs, I think, to an altogether different class from that of Pritchard v. Railway Co., 87 Ga. 294. There it was held that a good existing right of action which wmuld have abated upon the death of the plaintiff was saved by an act passed during the pendency of the suit, and that this act, even as applied to actions pending at the time of its passage, was not unconstitutional. The act under consideration in that case created no new cause of action. It merely kept alive good causes of action which would in certain contingencies have abated. The court in effect held that the defendant had no vested right to have a perfectly lawful demand against him destroyed, and an action therefor abated, merely by reason of the plaintiff’s death before obtaining judgment. ' The act of 1889 discussed in that ease was purely one relating to procedure, and I cited authorities to prove that “A law which merely alters the procedure may, with perfect propriety, be made applicable to past as well as future transactions.” The act of 1897, as above stated, brought into existence a new class of demands, and provided for their enforcement. It went far beyond making mere changes in procedure and practice.

Want of time arising from the great pressure of official work forbids that I should attempt to enter upon a more extended discussion of this very important question. I will therefore add nothing more except to suggest that, in endeavoring to apply the “greatprinciples of equity and natural justice” for the protection of purchasers who have made improvements on land not belonging to them, under the honest but mistaken belief that it did, there is danger of running contrary to these same great principles in permitting innocent defendants to “improve out of their property” plaintiffs equally innocent — such, for example, as minors who did not, by standing by and seeing the improvements made, or for any other reason, become, either in justice or equity, liable to such a loss.