Hunter v. Delta Realty Co.

• Citation: 169 S.W.2d 936,350 Mo. 1123
• Decision Date: 06 April 1943
• Docket Number: 38331
• Parties: Lee Hunter, Appellant, v. Delta Realty Company, a Corporation, Respondent
• Court: Missouri Supreme Court

169 S.W.2d 936

350 Mo. 1123

Lee Hunter, Appellant, v. Delta Realty Company, a Corporation, Respondent

No. 38331

Supreme Court of Missouri

April 6, 1943

Appeal from New Madrid Circuit Court; Hon. Louis H. Schult Judge.

Affirmed.

Merrill Spitler for appellant.

(1) The pleadings made an issue of fact to be tried by a jury. Sec 935, R. S. 1939. (2) All the elements of res adjudicata are not present in the pleadings on which judgment was rendered. The issue of monthly rents and profits in the prior case though admittedly presented to the court, which did find the value of rents and profits, and damages to be $ 3250 from filing of answer, but failed to find monthly rents and profits. In res adjudicata those issues presented and determined on prior adjudication only are res adjudicata in a subsequent action. No positive citations on this point as cannot find one analogous (3) That since Lee Hunter, successful in the prior adjudication, by whose terms the land was to be restored to his possession, was not bound to cross-appeal on monthly rents and profits, so the present cause of action arose from the failure of Delta Realty Company to deliver possession of the lands, and the taking of rents and profits for its own use. (4) The pleading of plaintiff set out a cause of action under the code. Sec. 916, R. S. 1939.

Hal H. McHaney for respondent.

(1) Where the suit is for alleged rents and profits and where the plaintiff in such suit, in a former action in ejectment, for damages and for accruing rents and profits, has obtained judgment for possession and for damages, but not a judgment for accruing rents; and where such facts are alleged by the defendant as a complete defense of res judicata and where such allegations are specifically admitted by the plaintiff, there is no triable issue for a jury upon the question of res judicata. The only question is a question of law and it is proper to dispose of the same upon a motion for judgment on the pleadings. 1 Houts, Missouri Pleading & Practice, sec. 124; Smith v. St. Joseph, 45 Mo. 449; Rumsey v. Peoples Ry. Co., 144 Mo. 174, 46 S.W. 144; Peniston v. Hydraulic Press Brick, 234 Mo. 698, 138 S.W. 532; State ex rel. Shartel v. Skinker, 324 Mo. 955, 25 S.W.2d 472; Nelson v. Wallace, 48 Mo.App. 193; Emmert v. Meyer, 65 Mo.App. 609; Sundmacher v. Lloyd, 135 Mo.App. 517, 116 S.W. 12; Parker-Washington v. Meriwether, 172 Mo.App. 344, 158 S.W. 74; Bird v. Rowell, 180 Mo.App. 421, 167 S.W. 1172; Meeker v. Chicago, R. I. & P. Ry. Co., 215 Mo.App. 492, 255 S.W. 340. (2) In the former suit between the same parties herein, the plaintiff herein by his pleadings sought to recover from the defendant herein, accruing rents and profits from and after the date of judgment until possession was restored to the plaintiff. In such former suit the issue was joined upon plaintiff's right to such recovery. Thereafter a judgment was rendered wherein the court failed to allow plaintiff any recovery for such rents and profits. By the present action the plaintiff again seeks to recover judgment for such rents. The judgment in the former action operates as an estoppel to prevent the plaintiff from prosecuting any further action for such rents and profits. Cordia v. Matthes, 130 S.W.2d 597; State ex rel. Gott v. Fidelity & Deposit Co. of Maryland, 317 Mo. 1078, 298 S.W. 83; Consolidated School Dist. No. 4, Greene County v. Day, 328 Mo. 1105, 43 S.W.2d 428; Emmert v. Aldridge, 231 Mo. 124, 132 S.W. 1050; Spratt v. Early, 199 Mo. l. c. 500, 97 S.W. 928; Donnell v. Wright, 147 Mo. l. c. 647, 49 S.W. 875; Citizens Security Bank of Englewood v. Gatewood, 36 S.W.2d 426. (3) The determination of rents and profits accruing subsequent to the judgment and before the recovery of possession was properly involved in the former action between the parties. The plaintiff in his action had the same right for the recovery of judgment in the former action for accruing rents and profits as for the recovery of past rents and profits and waste. R. S. 1939, secs. 1541, 1543, 1544; Stump v. Hornback, 109 Mo. 272, 18 S.W. 37; Lee v. Bowman, 55 Mo. 402. (4) If in the former action the trial court erroneously failed to allow accruing rents and profits the plaintiff's remedy was to have appealed from said judgment. 34 C. J., sec. 1337; Staub v. Phillips, 307 Mo. 576, 271 S.W. 365; See v. See, 294 Mo. 495, 242 S.W. 949; Stewart v. Dent, 24 Mo. 111; Doebbeling v. Quimby, 221 Mo.App. 1178, 299 S.W. 629; Adams v. Gilchrist, 63 Mo.App. 639. (5) Even though the judgment in the prior action is erroneous because the court failed to render judgment for accruing rents and profits, the same is nevertheless effective as a bar to further suits under the doctrine of res judicata. United States ex rel. and to Use of First Natl. Bank of Cape Girardeau v. Lufcy, 329 Mo. 1224, 49 S.W.2d 8; Stewart v. Dent, 24 Mo. 111.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

DALTON

Action to recover rents and profits in the sum of $ 12,000. After answer and reply were filed, the defendant moved for judgment on the pleadings. The motion was sustained and judgment was entered for defendant. Plaintiff has appealed.

The petition is in two counts, one covers rents and profits for 1938 and the other for 1939. In each count it is alleged that plaintiff was the owner of described lands in New Madrid County; that defendant was in possession thereof and farmed or caused same to be farmed; that plaintiff was entitled to the rents and profits therefrom; and that he had demanded payment from defendant, and payment had been refused. The cash value of the rents for the respective years is fixed at $ 6,000 and plaintiff asks judgment for $ 6,000 on each count.

Defendant's answer to each count was a general denial and a plea of res adjudicata, based upon the judgment entered in the case of Delta Realty Company v. Lee Hunter, 347 Mo. 1108, 152 S.W.2d 45. The facts alleged in the answer are that defendant Delta Realty Company, believing it was the owner of the described lands, brought an action against plaintiff, Lee Hunter, to quiet and determine title to said lands; that Lee Hunter claimed title and filed an answer and cross action to quiet title, and included a count in ejectment with a prayer for $ 12,000 damages and $ 500 per month for monthly rents and profits from rendition of the judgment until possession of the premises be delivered to him. Defendant further alleged that Lee Hunter prayed damages to growing trees, to the land and for accrued rents; that the cause was tried and judgment entered November 14, 1938 (by which it was determined that Lee Hunter, defendant in said cause, was entitled to judgment for $ 3,250 for rents and profits, waste and injuries to the premises), and that the cause was appealed and judgment affirmed. Defendant alleged that the question of damages for accrued rents, and for rents "that were to accrue in the future prior to the delivery of possession to Lee Hunter, were proper matters for adjudication in said cause"; and that the judgment was a complete bar to further action.

Defendant further alleged that, on November 6, 1939, it purchased the described lands at tax sale and became the absolute owner thereof and entitled to subsequently accruing rents and profits; and that from the proceeds of the tax sale plaintiff (Lee Hunter) was paid $ 17,399.01, being the purchase price, less taxes and the lien due defendant Delta Realty Company for improvements, that is, over and above the rents and damages allowed by the court to plaintiff.

Plaintiff's reply to defendant's answer to each count admitted the facts pleaded in the answer, but denied that the judgment was a bar to this action, since "future rents were not found by the court." It was admitted "the said judgment found the rents due at the time." Plaintiff further alleged that the court's findings only included waste, rents and damages to the date of the hearing on February 3, 1938, and "were based on the testimony of that date in said hearing." Plaintiff then set out in haec verba the judgment of November 14, 1938, wherein the court found that Delta Realty Company (plaintiff in said cause) was entitled to $ 14,844.08 for improvements upon the described lands; that Lee Hunter (defendant in said cause) was entitled "to rents and profits accruing upon said lands from the date of the filing of the answer . . . and for waste and injury to the premises in the sum of $ 3,250.00," leaving a net sum due the Delta Realty Company of $ 11,594.08, which was adjudged a lien and to bear interest at 6%. The judgment (as set out in the reply) further provides "that in the event said lien is not discharged by payment . . . on or prior to the 16th day of December 1938, . . . that defendant's (Lee Hunter's) interest in and to said lands shall cease and terminate and . . . plaintiff (Delta Realty Company) shall be well vested with complete fee simple title . . . free and clear of any claims of . . . defendant." It was further adjudged that Lee Hunter "from and after the date hereof . . . is lawfully entitled to possession."

For further reply, plaintiff alleged that he was entitled to possession of the described lands under said decree on November 14, 1938 and to the 1938 rents (count one) and the 1939 rents (count two) but that defendant remained in possession, refused to surrender possession, and farmed the land or collected the rents and profits and refused to pay plaintiff for the use thereof. It was alleged that "the true value of rents and profits in the future from date of February 3, 1938, were not found by the court," and that "due to shifting values and the appreciation of the land" it was not possible to determine the same. Plaintiff admitted the sale of the land to defendant for taxes in ...