2 S.W. 441 (Mo. 1886), Hughes v. Carson

Citation:2 S.W. 441, 90 Mo. 399
Opinion Judge:Sherwood, J.
Party Name:Hughes et al. v. Carson, Appellant
Attorney:Macfarlane & Trimble for appellant. Thos. H. Musick for respondents.
Case Date:December 20, 1886
Court:Supreme Court of Missouri
 
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Page 441

2 S.W. 441 (Mo. 1886)

90 Mo. 399

Hughes et al.

v.

Carson, Appellant

Supreme Court of Missouri

December 20, 1886

Appeal from Montgomery Circuit Court. -- Hon. Elijah Robinson, Judge.

Affirmed.

Macfarlane & Trimble for appellant.

(1) At common law recovery of rents and profits by way of damages in an ejectment suit was not authorized. Sedgwick & Wait on Trial of Title to Land, sec. 647; Tyler on Ejectment, 838. (2) After recovery in ejectment, trespass for mesne rents and profits was the remedy. Sedgwick & Wait on Trial of Title, sec. 648; Tyler on Ejectment, 838, et seq. (3) The statutes of this state provide for joining in a suit in ejectment a claim for damages, rents and profits. R. S., sec. 2252. (4) A claim for improvements can only be made after a judgment for possession and before eviction. R. S., sec. 2259; Malone v. Stretch, 69 Mo. 25; Henderson v. Langley, 76 Mo. 226. (5) In ejectment if plaintiff prevail he shall recover rents and profits by way of damages. R. S. 1879, sec. 2252. (6) Plaintiff may be at liberty to sue for possession without making a claim for rents, and after recovery of possession proceed in trespass for mesne rents and profits [Vandevoort v. Gould, 36 N.Y. 465], but we think, having elected to join a claim for rents, the judgment is a bar to any other action. Walker v. Mitchell, 18 B. Monroe, 541; Tyler on Ejectment, 737. The whole statute on the subject must be construed together. Our Supreme Court has construed section 2259, so as to require a claim for improvements to be made in the same court and before eviction. 69 Mo. 25; 76 Mo. 227. Trespass for mesne rents and profits will only lie after eviction. To give the statute any construction other than that a judgment against a tenant is a bar to a subsequent proceeding against the landlord, would deprive the landlord of the remedy given under section 2259, et seq. (7) If the landlord can be held as a joint trespasser so as to authorize a proceeding against him for mesne rents and profits, under a judgment in ejectment against his tenant, then he could be joined as a defendant in the ejectment suit, and plaintiff would be deprived of none of his rights. It is the usual practice to join the landlord in case a recovery of damages is expected and the tenant is insolvent.

Thos. H. Musick for respondents.

It is a well established principle that, unless clearly inconsistent...

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