The opinion
on rehearing.
Frauenthal, J. The appellants and appellee respectively filed motions herein for a rehearing. After due consideration of said motions we are of the opinion that the motions should be overruled, except .as herein indicated.
By our opinion in this case the findings of the special chancellor were in all things approved, except only as to his finding of the value of the improvements made on the lands by appellants and those under whom they claim. As to the value of those' improvements, we held that the sole error in the finding of the special chancellor was in adding to the cost thereof the sum of fifty per cent, of such cost; and we held that “as to the improvements we are of the opinion that his findings of the actual cost thereof at the time of the recovery will give the true amounts thereof, with which amounts the appellants should be credited.” The appellee has filed a motion in which she states that according to the finding of the special chancellor the said cost of the improvements made on the land claimed by appellant, Bond, amounted to $5,865, to which the special chancellor added $2,932.50, being fifty per cent, of same, and which latter finding only was disapproved; that if the amount of the final balance found by the special chancellor as due to the appellant, Bond, towit: $2,591.88, should be deducted from this disallowed item of credit of $2,932.50, it would represent the true final amount due to appellee from appellant Bond on the accounting, towit: $340.62. That the said cost of the improvements made on the lands claimed by appellants Cora and Jesse McDonald amounted to $2,520, to which the special chancellor added $1,260 being fifty per cent, of same, and which latter item only was disapproved ; that if to the final balance found by the special chancellor as due by the appellants McDonald, towit, $4,662.81, should be added this disallowed item of credit of $1,260, it would represent the true final amount due to appellee from the appelants Cora and Jesse McDonald upon the accounting, towit: $5,922.81; and the appellee asks that the portion of the order in our former opinion which refers the restating of an account to a master be set aside, and that the opinion and the decree be modified as above stated.
Upon further examination of the report of the special master and the findings of the spcial chancellor, we are of the opinion that the above correctly states the cost of the respective improvements at the time of the recovery made on the two tracts, and that in fixing the value of said improvements at said amounts the rights of appellants cannot be prejudiced. The value of said improvements are therefore found as above stated. It follows that, upon said final accounting of the improvements', taxes, and mesne profits, there is due by the appellant Antoinette Bond to the appellee the sum of $340.62, and that there is due by the appellants Cora and Jesse McDonald to the appellee the sum of $5,922.81; and that these should have been the findings of the special chancellor, and a decree rendered in favor of appellee for these respective amounts and a recovery of the lands. The order heretofore made herein for the appointment of a master and the reference to him for a restatement of the account is set aside. The former opinion of this court is modified so as to to conform with this additional opinion.
That portion of the decree of the Woodruff Chancery Court which grants to the appellee the restitution of the land claimed by the appellants Cora and Jesse McDonald and recovery against said appellants of $4,662.81, is modified so that it will decree in favor of the appellee the recovery of said lands claimed by appellants Cora and Jesse McDonald and a recovery against said appellants of the sum of $5,922.81; and the decree of the chancery court as to said appellants Cora and Jesse McDonald, thus modified, is affirmed.
That portion of the decree which finds in favor of the appellant Antoinette Bond, for a balance due on improvements and postponing the restitution of the lands claimed by said appellant Bond is reversed; and said portion of the cause is remanded to the Woodruff Chancery Court with directions to enter a decree in favor of appellee for immediate recovery of said land claimed by appellant Bond and a recovery against said Bond for' the sum of $340.62.
We do not enter a decree in this court in favor of appellee and against the appellant Antoinette Bond in accordance with the above opinion for the reason that the title to land is herein involved, and that portion of the decree is reversed. Where the decree of the lower court involving title to land is reversed, this court thereupon remands the cause to the lower court, with directions to enter a decree in that court in accordance with the order and opinion of this court.
In the McDonald branch of this case the lower court entered a decree in favor of the appellee fo'r the land, and that much of that portion of the decree we have affirmed. We have only modified in that branch of the case the amount of the damages that appellee should recover. Therefore that portion of the decree can be modified, and, as modified, affirmed.