McClaskey v. Barr

Citation62 F. 209
PartiesMcCLASKEY et al. v. BARR et al.
Decision Date18 June 1894
CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio

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 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 the principle abandoned, in different terms, differently applied.' In Blanchard v. Brown, 3 Wall. 249, the complainant had been defeated in an action of ejectment, and then filed a bill in equity, asking to have the estate upon equitable terms. The supreme court said that, having failed before the jury, he was estopped from investigating the same matters in another jurisdiction. In the ejectment case he risked his whole defense on the impeachment of his adversary's title for fraud, and, having been defeated, sought to have the question of fraud litigated in a court of chancery, which could not, under the circumstances, be done. In this case the defendants pleaded the statute of limitations, and relied upon adverse possession. The complainants successfully resisted on the ground that the defendants were not trespassers, nor holding adversely, but rightfully in possession as cotenants. It results that defendants are entitled to whatever equity they may have as cotenants to compensation for improvements. An obiter is to be found in a former opinion in this case, reported in 48 F. 137, to the effect that such relief can be afforded only upon cross bill. That proposition is supported by two or three authorities which were not at hand, but are cited in a footnote to section 504, Freem. Coten., which was cited by the court. Upon subsequent examination it was found that they were based upon local statutory rules of pleading, and in conflict with the general course of the authorities upon that subject. This is a forcible illustration of the unreliability of obiter dicta. The court is now clear that any equities to which the defendants may be entitled in this behalf may be allowed as incidental to the partition, under the defendants' general prayer for relief, and therefore that the citation from Daniell's Chancery Practice, above referred to, does not apply. The determination of the questions presented will depend upon the principles of equity, and the rules of decision applicable thereto.

Under the statutory provision (Rev. St. Sec. 721) making the laws of the several states, except where the constitution, treaties, or statutes of the United States otherwise require or provide, rules of decision in trials at common law, in the courts of the United States, in cases where they apply, it has been repeatedly held that the construction of the statutes of the state relating to land are rules of property which the federal courts will recognize and follow.

In St. John v. Chew, 12 Wheat. 168,-- one of the earlier cases,-- the supreme court said that:

'Whether these rules of land titles grow out of the statutes of a state or principles of the common law adopted and applied to titles, can make no difference. There is the same necessity and fitness in preserving uniformity of decision in the one case as in the other.'

In Miles v. Caldwell, 2 Wall. 44, the supreme court held that a claim for improvements made upon land in good faith by the complainant must depend wholly upon the statutes of Missouri, in which state the lands were situate. In Bucher v. Railroad Co., 125 U.S.,at page 583, 8 Sup.Ct. 974, Justice Miller, delivering the opinion of the court, said:

'It is well settled that where a course of decisions, whether founded upon statute or not, have become rules of property as laid down by the highest courts of the state, by which is meant those rules governing the descent, transfer, or sale of property, and the rules which affect the title and possession thereto, they are to be treated as laws of that state by the federal courts.'

The authorities to the same effect are collected in a note to section 375, on page 779, Fost. Fed. Pr. (2d Ed.). We must look, then, first to the decisions with reference to improvements made by the supreme court of Ohio, and applicable to this case.

In Taylor v. Foster's Adm'r, 22 Ohio St. 255 tenants in common held real...

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3 cases
  • Hackett v. Linch, 2209
    • United States
    • United States State Supreme Court of Wyoming
    • September 19, 1941
    ...rents. Where no rent is claimed, he may recover for taxes paid. Cardwell v. Clark, 158 N.Y.S. 300; Haight v. Pine, 42 N.Y.S. 303; McClaskey v. Barr, 62 F. 209. Myron Goodson is entitled to a one-tenth interest in the land, by virtue of a deed from Eva Worrell, an heir of John V. Linch, whic......
  • Lawrence v. Melvin
    • United States
    • United States State Supreme Court of Iowa
    • December 14, 1926
    ...155 Ky. 9 (159 S.W. 606); Geisendorff v. Cobbs, 47 Ind.App. 573 (94 N.E. 236); St. John v. Coates, 140 N.Y. 634 (35 N.E. 891); McClaskey v. Barr, 62 F. 209; Sommers Bennett, 68 W.Va. 157 (69 S.E. 690); Minion v. Warner, 238 N.Y. 413 (144 N.E. 665). A cause of action at law for contribution ......
  • Lawrence v. Melvin
    • United States
    • United States State Supreme Court of Iowa
    • December 14, 1926
    ...155 Ky. 9, 159 S. W. 606;Geisendorff v. Cobbs, 47 Ind. App. 573, 94 N. E. 236;St. John v. Coates, 140 N. Y. 634, 35 N. E. 891;McClaskey v. Barr (C. C.) 62 F. 209;Sommers v. Bennett, 68 W. Va. 157, 69 S. E. 690;Minion v. Warner, 238 N. Y. 413, 144 N. E. 665, 41 A. L. R. 1412. [11] A cause of......

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