Jackson v. Wilson , 87 Ind. App. 636 ( 1927 )

ON PETITION FOR REHEARING On rehearing, appellants rely upon Elrod v. Keller (1883),89 Ind. 382, to sustain their contention that appellee Wilson is not entitled to recover for the improvements made upon the real estate involved. But that case is an unfortunate citation for appellants. On page 387 of the opinion, the court says:

"It is also well settled that if improvements are made under the mistaken belief that the tenant owns the land, an allowance will be made in proceedings for partition for the amount that the land is enhanced in value. 1 Story, Eq. Jur. § 655; Conklin v. Conklin, 3 Sandf. Ch. 64; Scott v. Guernsey, 48 N.Y. 106, and authorities cited."

While, in the instant case, the court has found the value at the time of the trial of the improvements, made by appellee at his own expense while he was mistakenly believing that he 6. owned the whole title, it has also found the value of the land without such improvements to be $130. Appellants' respective proportions of the value of the real estate is all that they are in equity entitled to receive. No question of rents was presented.

It is true, as appellant says, that the complaint contains no averment that at the time appellee made the improvements on the real estate involved, he believed in good faith that he 7, 8. was the owner of the whole title thereto in fee simple, but, by uncontradicted evidence given by appellee, it appears that, at the time improvements were made, he did, in good faith, believe that he was such owner, and the said complaint will now be deemed to have been amended to conform to such proof. It is well established that after trial, the complaint will be deemed amended to correspond to the evidence that right result may be reached.

Rehearing denied.

Dausman, J., absent.