62 F. 209 (S.D.Ohio 1894), McClaskey v. Barr

Citation:62 F. 209
Party Name:McCLASKEY et al. v. BARR et al.
Case Date:June 18, 1894
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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62 F. 209 (S.D.Ohio 1894)

McCLASKEY et al.

v.

BARR et al.

United States Circuit Court, S.D. Ohio, Western Division.

June 18, 1894

H. T. Fay, for complainant.

S. T. Crawford and W. S. Thurston, for cross complainants.

Richard A. Harrison, Stephens, Lincoln & Smith, and Bateman & Hooper, for respondents.

SAGE, District Judge.

This case is before the court on exceptions to the special master's report, which present questions relating

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to claims for compensation for improvements made by the defendants who are tenants in common in possession. These questions may be classified under three heads: (1) Those relating to improvements made during the life tenancy; (2) those relating to improvements made after the termination of the life tenancy, and before the institution of this suit; (3) those relating to improvements made pending this suit.

It is objected on behalf of the complainants that no relief can be given to defendants on account of improvements, for the reason that there are no pleadings authorizing any such relief. In support of this contention counsel cite 1 Daniell, Ch.Pr. 712, as follows:

'If the defendant states upon his answer certain facts as evidence of a particular case, which he represents as a consequence of those facts, and upon which he rests his defense, he will not be permitted afterwards to make use of the same facts, for the purpose of establishing a different defense from that to which, by his answer, he has drawn the plaintiff's attention.'

The defendants by plea set up the statute of limitations with adverse possession. That plea was overruled. They now cite cases to the point that no trespasser, intruder, or volunteer can recover for improvements made by him while he was such. The court overruled the plea for the reason that it found that the defendants in this case were not trespassers or intruders or volunteers, but cotenants in possession, which distinguishes this case from cases cited, in which it was held that by the English law and by the common law of this country the owner recovers his land by ejectment without being subject to paying for the improvements which may have been made upon it.

In the case of Winthrop v. Huntington, 3 Ohio, 327, 333, the complainant, having been ejected from land claimed by him as owner in consequence of a recovery at law, filed his bill seeking to be considered as trustee for the lands in the character of absolute owner. This he claimed on the ground that, as the improvements and payments of taxes were for the benefit of the respondents, equity might well consider those acts as performed in the character of agent, so as thus to be enabled to do justice to the parties. The court said that the complainant acted in all that he did as a volunteer; that it was impossible to give him any other character; and that there was not only no case, but no principle, in which a mere volunteer could maintain a suit in law or equity for compensation; although there were many cases in which the party might be benefited by such interference, and in which an award of compensation would seem to be just. 'Nevertheless,' added the court, 'were it once permitted that one man could volunteer his services to another, and coerce compensation, it would subvert the fundamental doctrines of contract, and open a door for incalculable mischiefs and litigations. The complainant's counsel are too sensible of this to assert that a mere volunteer can recover; hence they attempt to establish an agency in their client, and do not seem to perceive that to convert a volunteer into an agent, against the consent of the alleged employer, is but maintaining...

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