Cox v. McDivit

• Decision Date: 10 December 1894
• Citation: 28 S.W. 597,125 Mo. 358
• Parties: Cox, Appellant, v. McDivit et al. [*]
• Court: Missouri Supreme Court

28 S.W. 597

125 Mo. 358

Cox, Appellant, v. McDivit et al. ^[*]

Supreme Court of Missouri, First Division

December 10, 1894

Appeal from Cedar Circuit Court. -- Hon. D. P. Stratton, Judge.

Reversed and remanded.

James Masters and R. F. Buller for appellant.

(1) The court had no right to order the occupying claimant to keep the land, and pay for it at its value aside from the improvements, unless the respondents in their answer asked for leave to relinquish the land, and recover the value thereof aside from the improvements. Revised Statutes, secs 4648 and 4649. (2) The offer to relinquish the land and take its naked value under section 4648 would be in the nature of a cross bill. The court could not have made such a decree upon the answer as it stood, if the respondents had objected to it, and per contra it could not upon their mere verbal request not contained in their answer. Stump v Hornback, 94 Mo. 26. (3) This being a special statutory proceeding, the judgment must conform to the statutes and can not go beyond it. Russell v. DeFrance, 39 Mo. 506; Henderson v. Langley, 69 Mo. 25. (4) No principle is better settled than that neither a plaintiff nor a defendant can have any affirmative relief not founded upon his pleadings. Bray's Adm'r v. Seligman's Adm'r, 75 Mo. 40; Smith v. Calligan, 74 Mo 389; McGonigle v. Daugherty, 71 Mo. 259.

C. C. Akin and W. C. Hastin for respondent.

OPINION

Macfarlane, J.

The defendants herein recovered a judgment in ejectment against plaintiff for the recovery of certain lands in Cedar county. Before possession was taken under said judgment the plaintiff, as the occupying claimant, commenced this suit, under section 4645, against these defendants, who were the plaintiffs in said ejectment suit, to recover compensation for improvements put upon the land in judgment. The petition contained the averments made necessary under section 4646.

Defendants answered admitting the judgment in ejectment and pleading as a set-off to such compensation the damages, rents and profits and costs recovered under said judgment, but did not in their answer ask for leave to relinquish the land to plaintiff, and recover the value thereof, aside from the improvement, as authorized by section 4648.

After a hearing of the issues, the court sitting as a jury found the value of the improvements to be $ 545, and the value of the land, aside from said improvements, to be $ 270. The judgment then recites: "Whereupon the defendants, in open court, elect to relinquish their title to said land to plaintiff and to recover the value thereof aside from said improvements from him." Judgment was thereupon rendered that plaintiff in one year pay the defendants the said sum of $ 270, and that defendants then make to plaintiff a deed to said land with general warranty, "and in default of such payment the defendants herein shall take possession of said land discharged of all claim of said plaintiff herein."

Plaintiff assigns for error that the judgment as rendered was not authorized under the pleadings.

The question presented by this record is whether the defendant, in this statutory proceeding to recover compensation for improvements put upon land in good faith by the occupying claimant, must, by answer and before trial, elect to take the value of the land, aside from the improvements, or whether he can postpone such election until after the value of the land shall have been determined.

While this proceeding is purely statutory, the remedial provisions of the statute have ever been liberally construed in order to an equitable and fair adjustment of the rights of the parties. Stump v. Hornback, 94 Mo. 26; 109 Mo. 274, 6 S.W. 356, and cases cited. But while this equitable construction has been given in matters pertaining to the adjustment of the rights of the parties, the remedy is found alone under the statute, and in order to obtain the relief afforded thereby the parties must plead as therein indicated. As to the steps to be taken to obtain the relief, and the judgment to be rendered, the terms imposed by the statute must be accepted and its requirements followed. So it has been said that "no remedy has been conferred by the statute on the party making the improvement except he comply with its terms," and that a party out of possession can not maintain the action (Malone v. Stretcher, 69 Mo. 25) and that a judgment unauthorized by the statute can not be rendered. Russell v. Defrance, 39 Mo. 506.

The sections of the statute bearing upon this appeal make these provisions:

Section 4645 gives the right to the occupying claimant to maintain an action against the successful plaintiff in the ejectment suit for improvements put upon the land in good faith. Section 4646 provides what the petition shall contain. Section 4647 authorizes an injunction to stay the plaintiff in the judgments in the ejectment suit from taking possession of the land until the value of the improvements is ascertained.

The other pertinent sections read as follows:

Section 4648. "The plaintiff may in his answer ask for leave to relinquish the land to the occupying claimant, and to recover the value thereof, aside from the improvements."

Section 4649. "If the value of the improvements exceed the value of the land aside from the improvements, the court may order that the occupying claimant shall,...