Anderson v. Sutton

• Citation: 293 S.W. 770,316 Mo. 1058
• Decision Date: 08 April 1927
• Docket Number: 27329
• Parties: Ben M. Anderson v. T. F. Sutton, Appellant
• Court: United States State Supreme Court of Missouri

293 S.W. 770

316 Mo. 1058

Ben M. Anderson v. T. F. Sutton, Appellant

No. 27329

Supreme Court of Missouri

April 8, 1927

Appeal from Audrain Circuit Court; Hon. Ernest Gantt Judge.

Affirmed.

N T. Gentry and Abbott, Fauntleroy, Cullen & Edwards for appellant.

(1) The opinion of this court in the same case, reported in 301 Missouri, is out of harmony with other decisions by this court and the weight of authority, and by inadvertence a principle of law was incorrectly therein stated which works injustice to the rights of the defendant, and said opinion should be overruled. Murphy v. Barron, 286 Mo. 409; Bagnell v. Railway, 242 Mo. 21; Mangold v Bacon, 237 Mo. 512; Bealey v. Smith, 158 Mo. 522; Bird v. Sellers, 122 Mo. 32; Rutledge v. Mo. Pac. Ry. Co., 123 Mo. 131; Wilson v. Beckwith, 140 Mo. 382. (2) The rule is that a bona fide occupant, holding possession of land under color of title, is not liable for the increased rental value of the land caused by improvements put upon it by himself, but that the rents must be computed upon the basis of the condition of the land when defendant took possession, and the opinion of this court in this case (301 Mo. 51) wherein a contrary view is expressed, is erroneous, inequitable and unjust, and its application inflicts such great injustice upon an occupying claimant that said opinion should not be followed, but overruled. 19 C. J. 1242; 31 C. J. 339; 7 R. C. L. sec. 38, p. 843, note B; Sedgwick & Wait on Trial of Title to Land (2 Ed.) sec. 678; 3 Sedgwick on Damages (9 Ed.) sec. 909a, p. 1879; Rector v. Gaines, 19 Ark. 70; Armor v. Frey, 253 Mo. 479; Byrne v. Byrne, 289 Mo. 125; Butler v. Gaines, 19 Ark. 95; McCarver v. Doe, 135 Ala. 542; Wisdom v. Reeves, 110 Ala. 418; Southern Cotton Co. v. Henshaw, 7 So. 760; Dozier v. Mitchell, 65 Ala. 511; Lee v. Humphries, 124 Ga. 539; Winn v. Rainey, 113 So. 9; Averett v. Brady, 20 Ga. 523; Beverly v. Burke, 9 Ga. 440; Elliott v. Armstrong, 4 Blackf. 421; Deitzler v. Wilhite, 55 Kan. 200; Gibson v. Fields, 98 P. 112; Haskins v. Spiller, 3 Dana, 573; Neale v. Hagthrop, 3 Bland, 551; Hodgkins v. Price, 141 Mass. 162; Curry v. Fish Co., 93 N.W. 986; Tatum v. McLellan, 56 Miss. 352; Belotti v. Bickhardt, 167 N.Y.S. 19; Jackson v. Loomis, 4 Cow. 168; Little Rock v. Jeuryens, 202 S.W. 45; Nixon v. Porter, 38 Miss. 401; Ball v. New Orleans, 28 So. 109. (3) Under the evidence adduced and the instructions given for plaintiff, defendant was required to pay double rent for part of the crop year of 1925-6. Instructions 5 and 8; Dunbar v. Dunbar, 168 Ill.App. 42; 23 C. J. 156; 7 Ency. Ev. 894; Mfg. Co. v. Cunningham, 73 Mo.App. 379; Garth v. Cardwell, 72 Mo. 628. (4) The plaintiff was entitled to recover only the net value of one-half the crops, and the court erred in instructing the jury to return a verdict for one-half the gross value. Averett v. Brady, 20 Ga. 523; Dunlap v. Yoakum, 18 Tex. 582; Hodgkins v. Price, 5 N.E. 503. (5) It was error for the court to permit counsel for the plaintiff, in his closing argument, to state that the defendant went to the county court and got that body to blindly sell him the land at $ 1.25 an acre, and in asserting, after objection had been sustained, that $ 1.25 an acre was what said land sells for, that defendant's deed shows it and plaintiff did not think to deny it, all of which statements were not supported by an iota of evidence, and were prejudicial. Moore v. Ry. Co., 268 Mo. 31; Jackman v. Ry. Co., 206 S.W. 244; Williams v. Columbia Co., 241 S.W. 970; Franklin v. Kansas City, 213 Mo.App. 154.

Irwin & Dunn and Rodgers & Buffington for respondent.

(1) Appellant occupies the novel position of attacking two former and successive opinions in this case be overruled because this court ruled therein that plaintiff was entitled to recover as his damages for the wrongful withholding of the land whatever his proof showed to be the mesne profits taken from the land by defendant after it had been cleared and put in cultivation. This rule was laid down in the first appeal, 301 Mo. 50, 254 S.W. 854. When the case was again before this court on the second appeal, 275 S.W. 32, respondent made no attack whatsoever upon this court's holding in 301 Mo. relative to plaintiff's measure of damages but being satisfied with the law as ruled in the first appeal, because satisfied with the jury's verdict in the second trial on the issue of plaintiff's damages, was perfectly willing to submit the second appeal for review on the issues raised by defendant's claim for improvements; but upon the proper application of the law in the instant case to the facts respecting plaintiff's damages resulting in the substantial verdict as shown against defendant he becomes suddenly aroused and the law as ruled in 301 Mo. now becomes wrong and unjust. We know of no case where this court has ever reversed on a third appeal two former decisions holding the same and identical thing, yet such is the action that the appellant seeks to have this court take. In the last Anderson appeal five members of the court only were sitting and as the opinion is concurred in by three the opinion was rendered by a majority of the court as is contemplated under the Constitution. The general rule throughout the country in the absence of special statutory provision holds to this end. 15 C. J. sec. 362, p. 965. (2) A question presented in a second appeal which was ruled on in a first appeal is not for review on a second hearing. Meriwether v. Publishers, 224 Mo. 624; Carey v. West, 165 Mo. 455; Mangold v. Bacon, 237 Mo. 517. (3) What appellant wants done and seeks to accomplish in and of itself demonstrates the gross injustice that would be visited upon respondent. Throughout this case appellant through his counsel stated and took the position that at the time he took possession in 1913 the land by reason of being uncleared had not a cent of rental value. But the evidence conclusively showed that from 1916 to 1925 inclusive an average of forty to forty-five bushels of corn to the acre was raised and produced on this land each year with the possible exception of 1924, which would be a ten-year period not counting the year of 1924, and that the average value of Sutton's rent corn in the crib on the farm exceeded one dollar per bushel. By mere calculation it can be seen that Sutton on the 250 acres or more of land, that he used and rented out and produced annual corn crops thereon, in this ten-year period averaged $ 5,000 a year from the corn as his share of the rents and profits, making a total of $ 50,000 realized by him from this land. What appellant wants is that this court confine respondent to rents and profits as of the day appellant took possession of the land, which in the state the land was in at the time means that the land had no rental value, and thus respondent should be denied all rights to any part of the $ 50,000 appellant has made off of the land. To place a stamp of approval upon any such position would be the most striking case of gross injustice. (4) Appellant's claim that double damages were assessed against him for the wrongful withholding of the premises is erroneous. (5) Appellant's contention that he should be held accountable only for the net value of the crops is without foundation. Sec. 1827, R. S. 1919. A plaintiff in ejectment shall recover damages by way of rents and profits down to the time of assessing same and there is no limitation in said statute that such damages by way of rents and profits shall have deducted therefrom any claimed expense by the trespasser in producing such profits, and the record fails to show that appellant was put to a cent of expense in money or labor.

Blair, C. J. All concur, except Ragland and Gantt, JJ., not sitting.

OPINION

BLAIR

Action in ejectment to recover possession of certain land in Boone County, with damages for withholding same. The case went to Audrain County after change of venue. Upon a jury trial there, Anderson recovered judgment for possession and was awarded damages in the sum of $ 20,000. The value of the monthly rents and profits was fixed at $ 350. Sutton has appealed.

We will not burden the opinion with a long recital of facts. Anderson's title was determined in Anderson v. Sutton, 295 Mo. 195. The present suit in ejectment was a separate suit. Anderson appealed from two former judgments assessing damages and rents and profits. See cases by the same title in 301 Mo. 50 and 275 S.W. 32.

Anderson's right to possession is conceded. Previous reversals have been due to erroneous instructions, covering the measure of damages, and errors in the admission and exclusion of testimony. It is not seriously questioned that, in the last trial, the court followed the rule as to measuring damages laid down in the opinions heretofore written. On the first appeal it was held that the rule is not inequitable which "awards the owner rents and profits according to the value of the land for the purpose for which it has been devoted by the occupant, who is not thereby required to pay rent on the improvements made by him, but the rental value of the land measured by the increased adaptation of same for the purpose for which it has been used, although such adaptation may have been brought about by the occupant's own labor or at his expense."

We there held that Anderson was entitled to damages based upon the rental value of the property as enhanced by the improvements put upon it by Sutton, in so far as such improvements constituted a mere increased adaptation of the land for farming purposes. Appellant now assails that ruling as erroneous, inequitable and unjust and as inflicting such a great hardship and injustice upon the occupying claimant that our previous opinion should not be followed, even though it is a former...