(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.