Jones v. Graves , 21 Iowa 474 ( 1866 )

Dillon, J.

i. oocoPYisrct C-LAXÍIAIT^C * trae bond.' Graves’ own title bond from A. J. Myrick, recites that Graves is to pay Holcomb certain notes corresponding with those originally executed by O O t/ v Kimble to Holcomb for the purchase-money of the lot. Graves’ affidavit in the foreclosure suit of Holcomb, shows that he knew that Kimble only received from Holcomb a title bond, and it was this bond under which Myrick and others claimed the property. These and other circumstances make it quite clear that Graves Ivnew from the beginning that Myrick (of whom he bought) held and claimed the property only as the assignee of the Kimble title bond. At all events, this question was fairly submitted to the jury in the instructions quoted in the statement, and the jury must have found from the testimony, that Graves knew when he bought of Myrick, that the latter did not claim to be absolute owner, but held under the Kimble title bond. This finding is, to our minds, clearly supported by the evidence.

Under these circumstances, is Graves entitled to the benefit of the occupying claimant act, and can he recover of the original vendor (Holcomb) or his grantee (Jones) the value of the improvement made by Myrick and subsequently completed by himself? He bases this claim upon sections 22,64 and 2269 of the Kevision, insisting that he, and Myrick, under whom he claims, have “ in good faith made valuable improvements on the land, and have, in the proper action, been found not to be the rightful owners thereofand that he has, under section 2269, color of title, because he has occupied the property, by himself and those under, whom he claims, for more than five years, and that the relation of landlord and tenant between himself and either Holcomb or J ones never existed.

After giving to the forcible and ingenious argument of appeljant’s counsel on this question, due consideration, we are of the opinion that the statute, although its language is very broad, has no application to a case of this character. And we briefly state our reasons;

Kimble, the original vendee, could not, if he had made the improvement and remained in possession five years or longer, set up, as against his vendor, a claim to be allowed for his improvement. This is clear. Why ? Because the lien of the vendor is first and paramount, and there can be no occupying claimant’s rights set-up against it. The vendee making the improvements gets the benefit of them. They become part of the land. If the vendee pays the purchase-money,.land and improvements belong to him. If he does not pay and the property is sold under a decree of foreclosure, he gets the benefit of the improvements, by the increased price the property brings in consequence of the improvements. If the property is sold under a. decree to which he is not a party, the decree binds him not, his rights have not been foreclosed, and if not forfeited, he may, notwithstanding the decree, redeem the property. And this is his remedy. But his case is not one to which the occupying claimant law applies.

Such would clearly be the law if Kimble had made the improvements. Now, the rights of Myrick and Graves are derivative and-can mount no higher than their source, and their source is from Kimble, as the evidence shows, and as the jury, under the instructions, must have found.

See how the appellant’s doctrine would operate on Holcomb, the vendor. He obtained a decree for the purchase-money due him. He buys the property with improvements and pays for it including the improvements. Is he bound to refund the value of these improvements in this proceeding ? No more than the mortgagee, after foreclosure and purchase by him, would have to allow the mortgagor for improvements made after the mortgage and before th,e foreclosure sale. .

If appellant claims that he has never been foreclosed because not a party, then his remedy, as above suggested, is by a bill to redeem, tender or offer to pay the purchase-money and ask for a deed. In this way complete justice is done. Yendor gets his piu’chase-money and does not have to allow for improvements he 'never authorized; vendee, or. his assignee, gets the property with his improvements by paying for it, by paying simply the original purchase-money with interest.

The instructions quoted are sufficiently favorable to the appellant.

Meeting and deciding, as we have, the vital question in the case, it becomes unnecessary to notice other minor points made by the appellant. These, however, have been examined, and no errors discovered which would require a reversal of the judgment.

Affirmed.