Anderson v. Sutton

• Decision Date: 12 March 1925
• Docket Number: No. 25317.,25317.
• Citation: 275 S.W. 32
• Parties: ANDERSON v. SUTTON SUTTON v. ANDERSON.
• Court: Missouri Supreme Court

275 S.W. 32

ANDERSON v. SUTTON

SUTTON v. ANDERSON.

No. 25317.

Supreme Court of Missouri. In Banc.

March 12, 1925.

Motion for Rehearing Overruled May 23, 1925.

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

Consolidated actions by Ben M. Anderson against T. F. Sutton, and by T. F. Sutton against Ben M. Anderson. Judgment for Sutton, and Anderson appeals. Reversed and remanded.

See, also, 295 Mo. 195, 243 S. W. 643; 301 Mo. 50, 254 S. W. 854.

William H. Sapp, of Columbia, and Irwin & Dunn, of Jefferson City, for appellant.

E. C. Anderson, of Columbia, and Dumm & Cook, of Jefferson City, for respondent.

Statement.

WOODSON, J.

This suit was instituted in the circuit court of Boone county by Ben M. Anderson against T. F. Sutton to recover damages and 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.

Opinion.

I. This action of the trial court was clearly erroneous, but, in justice to the learned trial judge who tried the case, 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, R. S. 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, 72 S. W. 689, 96 Am. St. Rep. 479; Henderson v. Langley, 76 Mo. 226.

Judge Graves said in the case of State ex rel. Jiner v. Foard, 251 Mo. loc. cit. 56, 157 S. W. 620:

"`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 have held that, when the defendant in ejectment does not claim title from or through the plaintiff, then his action for improvements must be, and is, an independent action; that in such case the value of the improvements cannot be adjudicated in the ejectment suit proper, but must be adjudicated in an action under the statute. Tice v. Fleming, 173 Mo. loc. cit. 56 et seq.; Bristol v. Thompson, 204 Mo. 366; Mann v. Doerr, 222 Mo. loc. cit. 19."

II. Of course, a mere squatter with notice of the true owner's title without belief that he has a title cannot recover for any improvements placed by him upon the land, however valuable they may be, nor under no circumstances can he recover more than what the improvements cost to make or place upon the premises, except as hereinafter mentioned, nor what they are reasonably worth as placed upon the premises.

The right to set off improvements made in the same suit for the possession of the land only exists where the defendant tenant claims the right to the possession of the land under and through the plaintiff suing for the possession of the premises, as previously stated.

By reading section 1834, supra, it clearly appears that no right of action exists on behalf of a person for improvements made until a judgment or decree dispossessing him has been rendered. State v. Foard, 251 Mo. loc. cit. 56, 157 S. W. 619.

III. There is no pretense that Mr. Sutton claims the land under Mr. Anderson, but he claims through Boone county. This view of the case which is unquestionably the correct one, removes from the case the trial of the value of the improvements, until after the value of the rents and profits are adjudicated. So, when this case reaches the trial court again, this opinion will completely eliminate from consideration both the character and value of the improvements put on the premises, and confine its inquiry solely to the value of the damages and rents and profits of the land while Mr. Sutton was in possession of it.

IV. My learned associate, who wrote the opinion in the ejectment suit before mentioned, and his associates, inadvertently omitted to notice the statute previously mentioned providing that a set-off could not be entertained, except where the tenant was claiming under the party claiming under the better title; and as previously stated, the defendant, Mr. Sutton, does not claim his right to the possession of the land from the plaintiff, Mr. Anderson, but his claim is founded exclusively upon a conveyance from Boone county, Mo.

V. The evidence shows that the land in question is located in the Missouri river bottom, and that it was the universal custom to rent such land for crop rent, usually, if not exclusively, for one-half of the crop. This seems to be conceded by all of the witnesses. Anderson therefore, in order to determine the value of the rents and profits of the one-half of the land which Sutton received and should have paid to him, but which he wholly failed to do, undertook to show the kind and character of the land, together with its productivity, the kind and value of the crops grown on the land, to all of which Sutton objected, and the objection was sustained by the court. Some few of the questions asked relative to the rents and profits are here cited in order to show the ruling of the court:

"Q. What was corn selling for in 1916, the general market value of corn?

"Court: Objections sustained.

"Plaintiff offered to show that corn was selling for $1 per bushel during the year of 1916.

"Court: Objections sustained.

"Q. What the nature of the season of 1916?

"Court: Objections sustained.

"Q. What was the reasonable rental value of the land grown in corn considering the price at which it was selling, the character of the crops grown during the year 1916?

"Court: Objections sustained."

Plaintiff offered to show the reasonable value of the crop for 1916 was $35, to which objection was sustained:

"Q. Senator, what was the reasonable value of the land for corn during the year 1916?

"Court: Objections sustained.

"Q. What was the reasonable value of the land during 1921, for corn, taking into consideration what was produced, the value, etc.?

"Court: Objections sustained."

After showing that land in the river bottom was always rented on the shares and that there was no cash rental value, the following questions were asked:

"Q. Did you observe the character of the crop grown on it? A. I noticed it some. That year I was going through the corn, and would notice it some.

"Q. Now what in your opinion was half the value of the crop?

"Court: Objections sustained. Senator, I have passed on that question now, and I would be obliged if you would observe the rule from now on. If I have erred, the Supreme Court will set me right. They have passed on it, and now let one ruling in this case suffice.

"Mr. Irwin: Does the court rule I cannot ask the number of bushels?

"Court: I have ruled on it, I think, enough.

"Q. How much corn on an acreage will it produce a year?

"Court: Objections sustained."

Witness John B. Estes, who had farmed part of this very land, was asked the following:

"Q. How does the land produce?

"Court. Objections sustained.

"Q. On an average, for the last five years, what would be the average production of the land?

"Court: Objections sustained."

Yet on cross-examination defendant was permitted to show that some of the land was sandy, and would not produce.

VI. Counsel for appellant insist that the learned trial court erred in excluding the testimony above set forth, tending to show the value of one-half of the crops raised on the lands during the years that Sutton cultivated them.

This is one of the cases where the law implies a contract on the part of the tenant to pay rent. In treating of such cases Mr. Tiffany, on page 1030, vol. 1, par. b, uses this language:

"The cases not infrequently contain references to an `implied contract' or an `implied covenant' to pay rent as distinct from one which is `express,' and it is desirable to obtain a clear conception, so far as possible, of what is meant by these expressions."

On pages 1889, 1890, he says:

"a. When No Rent Reserved. The plaintiff must, it appears, in the absence of a contract for a specific rent, give some evidence of the value of the use and occupation. In case there is no express agreement as to rent, the quantum of recovery is the reasonable value of the occupation which has actually been enjoyed, or, as it has been otherwise expressed, the rental value of the land, and this rule was applied when the parties thought they had agreed on the rent, but they had not done so. In case of an occupancy for part of the year only, the recovery is of the value of the occupation for that time, and not a pro tanto part of the yearly value.

"The value of the occupancy of a house built on the premises by the tenant during his occupancy cannot, it has been decided, be included in the recovery, and, if a demise expressed to be of particular land is not proven, the recovery can be only for that actually occupied.

"The purpose for which the property is...