Hardeman v. Turner

• Citation: 112 F. 41
• Decision Date: 04 November 1901
• Docket Number: 1,518.
• Parties: HARDEMAN et al. v. TURNER et al.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

112 F. 41

HARDEMAN et al. v. TURNER et al.

No. 1,518.

United States Court of Appeals, Eighth Circuit.

November 4, 1901

W. A Ledbetter and S. T. Bledsoe, for plaintiffs in error.

C. L Herbert, Hal M. Cannon, A. C. Cruce, W. I. Cruce, Lee Cruce Henry M. Furman, and James H. Mathers, for defendants in error.

Before SANBORN and THAYER, Circuit Judges, and ADAMS, District Judge.

SANBORN Circuit Judge.

Is the plaintiff in ejectment entitled to an accounting and credit for the rental value of the land and improvements, or for the rental value of the land only, against a bona fide occupant in possession after a judgment in favor of the plaintiff which fixes the amount of the lien upon the land in favor of the occupant, pursuant to the provisions of sections 2645, and 2646 of Mansfield's Digest of the Statutes of Arkansas of 1884, in force in the Indian Territory? The statutes of Arkansas provide that, in an action of ejectment against a bona fide occupant, the latter shall be entitled to the value of his improvements and his taxes (section 2644), and then they read:

'Sec. 2645. The court or jury trying such cause shall assess the value of such improvements in the same action in which the title to said lands is adjudicated; and on such trial the damages sustained by the owner of the lands from waste, and such mesne profits as may be allowed by law, shall also be assessed, and if the value of the improvements made by the occupant and the taxes paid as aforesaid shall exceed the amount of said damages and mesne profits combined, the court shall enter an order as a part of the final judgment providing that no writ shall issue for the possession of the lands in favor of the successful party until payment has been made to such occupant of the balance due him for such improvements and the taxes paid; and such amount shall be a lien on the said lands, which may be enforced by equitable proceedings at any time within three years after the date of such judgment.

'Sec. 2646. In recoveries against such occupants no account for any mesne profits shall be allowed unless the same shall have accrued within three years next before the commencement of the suit in which they may be claimed.

In an action of ejectment brought by Katie Turner and Hattie Belle Samuels, the defendants in error, against J. F. Hardeman, T E. Hardeman, and Samuel Daube, a judgment was rendered in the United States court on November 11, 1895, under the provisions of the statutes quoted above, that the plaintiffs were entitled to the possession of certain real estate in the Indian Territory, but that the defendants had a lien thereon for $1,340.67 for improvements made and taxes paid by them while they were bona fide occupants under the law. The defendants made no effort to foreclose their lien under section 2646, and thereupon the plaintiffs applied to the United States court in February, 1899, for the issue of the writ of restitution on the ground that the defendants had so long occupied the premises that their rental value had already exceeded the amount of their lien for improvements and taxes. Upon this application the court adjudged that the premises had been occupied by the defendants from the time of the judgment, in 1895; that the rental value thereof had been $30 per month; that the plaintiffs were entitled to credit in the accounting for these rents, and interest upon them at 6 per cent. per annum from the time they respectively fell due; that the defendants were entitled to credit for the $1,340.67, and interest thereon at the same rate from the date of the entry of the former judgment; that under this method of accounting there still remained owing to the defendants the sum of $188.68; that upon the payment thereof by the plaintiffs a writ of restitution should issue; and that in the event that this amount should not be paid by the plaintiffs a writ of restitution might issue as soon as the rental, at the rate of $30 a month from the time of the entry of this judgment, amounted to $188.68. This judgment ...