Anderson v. Sutton

• Decision Date: 23 May 1925
• Docket Number: 25317
• Parties: BEN M. ANDERSON, Appellant, v. T. F. SUTTON. T. F. SUTTON v. BEN M. ANDERSON, Appellant
• Court: Missouri Supreme Court

275 S.W. 32

308 Mo. 406

BEN M. ANDERSON, Appellant, v. T. F. SUTTON. T. F. SUTTON v. BEN M. ANDERSON, Appellant

No. 25317

Supreme Court of Missouri

May 23, 1925

Appeal from Boone County Circuit Court; Hon. David H Harris, Judge.

Reversed and remanded.

William H. Sapp and Irwin & Dunn for appellant.

(1) The court erred in ordering the case of Anderson v. Sutton in ejectment consolidated with the case of Sutton v. Anderson for recovery for value of improvements, and tried as one action. Secs. 1815, 1820, 1821, 1822, 1827, 1829, R. S. 1919; Secs. 1834, 1835, 1836, R. S. 1919, and subsequent sections providing for compensation for improvements. No right of action exists on behalf of a person for improvements made until "a judgment or decree dispossessing him has been given." Sec. 1834, R. S. 1919. The consolidation shifted to Anderson the burden of proving notice in order to recover for rents and profits as required by Sec. 1827, R. S. 1919 and thereby relieved Sutton of the burden of proving that the improvements were made in good faith and without notice, as required of him by Sec. 1834, R. S. 1919. "In case the defendant's possession and occupancy is by claim of title through the plaintiff then the value of the improvements may be considered in the ejectment suit; but if defendant's occupancy is under a stranger to the title of plaintiff, then his action for improvements must be an independent one, under the statute." Tice v. Flemming, 173 Mo. 56; Henderson v. Langley, 76 Mo. 226; Stump v Hornback, 109 Mo. 272. "The value of the improvements cannot be adjudicated in the ejectment suit proper, but must be adjudicated in an action under the statute." State ex rel. v. Foard, 251 Mo. 56; Montgomery v. Gahagan, 246 Mo. 320. (2) The court erred in excluding testimony offered by plaintiff, for the purpose of showing the value of one-half of the crops raised by Sutton. While it is true that the measure of damages for wrongful withholding is the fair annual rental value, the evidence was conclusive that only grain crop rent was charged for river bottom land; hence, the character of the land, its productiveness, the kind, quality, quantity and value of the crops produced, was competent as going to show "the fair annual rental value." Sires v. Clark, 132 Mo.App. 541; Wiggins v. Railroad, 129 Mo.App. 370; Muldrow v. Ry. Co., 62 Mo.App. 431. (3) Sutton was not entitled to recover more than the cost to him for the improvements made although he might recover less than the cost in the event that the improvement did not add its cost to the land as an improvement. To allow him more than the cost would be to allow more than compensated him. Anderson was the only person to be injured if he paid actual cost. Sires v. Clark, 132 Mo.App. 537. (4) Instruction D allows the jury to find for him if "he entered into the possession of the lands in good faith." The statutes require that the improvements shall be made "in good faith." Sec. 1834, R. S. 1919; Dothage v. Stuart, 35 Mo. 251; Stump v. Hornback, 109 Mo. 272; Smith v. Mount, 149 Mo.App. 668; Eisberg v. Phillips, 197 Mo.App. 329; Pike v. Martendale, 91 Mo. 268; Pierce v. Rollins, 60 Mo.App. 497; Cunningham v. Anderson, 107 Mo. 371. (5) Sec. 1317, R. S. 1919, provides that all "actions upon a liability created by statute" is barred within five years. The right to recover for improvements was not one given by the common law, but is purely statutory. Cox v. McDivit, 125 Mo. 361; Stump v. Hornback, 94 Mo. 26, 109 Mo. 274. "It is held in some cases, however, that the right to set off the value of improvements placed upon the land more than five years before the commencement of the action is barred by the Statute of Limitation. It is held that when the statute is relied upon by the parties, it must operate alike upon both." Warvelle on Ejectment, pp. 543, 601. (6) Where the premises have been actually rented out during the adverse possession, then the rents received, minus a fair compensation for the necessary time and labor involved in the care and management of the premises and in collecting rents, is the measure of damages. Warvelle on Ejectment, pp. 543, 600; Hodgkins v. Price, 141 Mass. 162. (7) The court erred in refusing to give the plaintiff Anderson's instruction numbered two. This instruction we believe properly declared the law. The evidence shows and Sutton admitted that the crops received from year to year paid the expense of improving the land, hence if he received his pay from year to year out of the land, even though he had no notice of Anderson's claim, or in other words if Sutton cleared the land for what he got out of the crop (and he admitted that two crops more than paid his expense), then he should not recover as against Anderson for that for which he had already been paid.

E. C. Anderson and Dumm & Cook for respondent.

(1) The trial court did not err in ordering the consolidation of the case of Anderson v. Sutton, for damages, rents and profits, and the case of Sutton v. Anderson, for the value of improvements. Graves, J., in Anderson v. Sutton, 254 S.W. 857. (2) The court did not err in excluding testimony offered by plaintiff Anderson for the purpose of showing the value of one-half of the crops raised by Sutton. Anderson v. Sutton, 254 S.W. 854; Phillips v. Stewart, 87 Mo.App. 493; Miller v. Ingram, 56 Miss. 510; Wolcott v. Townsend, 49 Iowa 456; Gardner v. Granniss, 57 Ga. 539; Warvelle on Ejectment, p. 588. (3) The court did not err in rejecting testimony offered by defendant Anderson showing the cost of clearing land and making improvements. Sires v. Clark, 132 Mo.App. 537; Devine v. Charles, 71 Mo.App. 210. (4) The court did not err in giving plaintiff Sutton's Instruction D. This instruction requires the jury to find that Sutton entered into possession of the lands in good faith, with an honest belief that he owned and had good title thereto, and that in such faith and belief he made improvements thereon. Instructions are to be considered as a whole, and this instruction, considered in connection with defendant Anderson's Instruction 17 and plaintiff Sutton's Instruction C properly declares the law. (5) The court did not err in refusing to give plaintiff Anderson's Instruction 1. In the first place, the instruction contains no date and would have been wholly meaningless to the jury in the form requested. In the second place, even if the five-year Statute of Limitation applies, it would begin to run, not five years prior to the date of the institution of the suit of Sutton v. Anderson, as stated in said instruction, but from the time when Sutton's right to recover for improvements accrued, by reason of his being found not to be the rightful owner of the land by a judgment of eviction against him, which was on October 24, 1922, and his action for improvements must be brought within five years from said date. (6) Plaintiff Anderson's requested Instruction 4 was incorrect in that it told the jury they might take into consideration the price for which the wheat and corn were sold. Phillips v. Stewart, 87 Mo.App. 486; Anderson v. Sutton, 254 S.W. 854. (7) Plaintiff Anderson's requested Instruction 2 is erroneous and was properly refused, for the reason that it authorized the jury to give to Anderson rents and profits barred by the Statute of Limitations, and for the further reason that it authorized the jury to award double rents and profits to Anderson.

Woodson, J. Graves, C. J., and Walker, J., concur; David E. Blair, J., concurs in the result; White, J., dissents; Ragland and Atwood, JJ., not sitting.

OPINION

WOODSON

This suit was instituted in the Circuit Court of Boone County by Ben M. Anderson against T. F. Sutton to recover damages and the monthly rents and profits for the use and occupation of certain real estate described in the petition. The title to the land and the right of the possession thereto had been litigated and adjudged between the parties in favor of Anderson, a year or so previous to the institution of this suit.

After the trial of the ejectment suit against Sutton, he brought in the Circuit Court of Boone County a suit to recover the value of improvements he claims to have been made by him on the premises while he was in possession of and cultivating the land mentioned.

When this case was called for trial, the court upon motion consolidated the two cases, that for rents and that for improvements, into one case, and tried them as one, to which action of the court the appellant objected and saved his exceptions.

I. This action of the trial court was clearly erroneous, but in justice to the learned trial judge who tried the case, it is proper to say that the error committed was in all probability due to the suggestion of this court that the two cases might be consolidated and tried as one case.

When we wrote the opinion in the ejectment suit before mentioned, we inadvertently overlooked Section 1834, Revised Statutes 1919, which requires an independent action to be brought for improvements where the tenant claims title in possession of the land from another party who has the better title to the land. We have so ruled a number of times. [Tice v. Fleming, 173 Mo. 56; Henderson v. Langley, 76 Mo. 226.]

Judge Graves said in the case of State ex rel. v. Foard, 251 Mo. l. c. 56:

"'Sec 2402. The plaintiff in his petition shall set forth the nature of his title, the length of his possession and the kind and value of the improvements made; and shall also aver therein that he entered into the possession of the land, believing that he had good title thereto, and that he made the improvements specified in the petition in good faith, under the belief that he had good title to the land, and shall be verified by his affidavit thereto annexed.'

"We...