Leighton v. Young, 123.

• Decision Date: 20 September 1892
• Docket Number: 123.
• Citation: 52 F. 439
• Parties: LEIGHTON et al. v. YOUNG et al.
• Court: U.S. Court of Appeals — Eighth Circuit

52 F. 439

LEIGHTON et al. v. YOUNG et al.

No. 123.

United States Court of Appeals, Eighth Circuit.

September, 20, 1892

Statement by CALDWELL, Circuit Judge:

In 1884, Rowena Young brought suit in ejectment in the circuit court of the United States for the district of Nebraska against Harriet Leighton and Charles M. Leighton for the land which gave rise to this suit. On the trial of the ejectment suit the land was adjudged to belong to the plaintiff in that suit. The defendants were bona fide occupants and claimants of the land, and entitled to the rights secured to such occupants by the occupying claimant's law of that state.

In answer to an inquiry submitted to them by the court, at the request of the parties, the jury in the ejectment suit returned a special finding to the effect that the land was worth $6,000 without the improvements, and that the improvements were worth $11,000. The statutory mode of proceeding to ascertain the value of the land and the improvements was not observed, and the special finding returned by the jury was not made the basis of any order or judgment of the court in the case. On the 17th day of December, 1888, judgment was entered in favor of the plaintiff for the recovery of the land. See 37 F. 46. In this state of the record, the plaintiff in that suit, on the 19th day of March, 1889, without paying or tendering to the defendants the value of their improvements, caused a writ of possession to issue on the judgment in ejectment, and the marshal was about to put the defendants out of possession of the land, when they filed the present bill against the plaintiff in the ejectment suit and the marshal, setting up the foregoing facts, and their rights as occupying claimants and praying that the execution of the writ of possession be enjoined until the complainants had been paid the value of their improvements on the land. The injunction was granted.

The defendant answered the bill, admitted the special finding of the jury in the ejectment suit, but denied that it was binding on either party as to the value of the land and improvements; alleged that it was merely made 'for the purpose of that hearing, and for the purpose of appeal, if necessary;' that the land was worth more, and the improvements less, than was stated in the special finding admitted the defendant had sued out a writ of possession upon the judgment in ejectment, 'and that this defendant desires possession of said property, or that the said plaintiff shall proceed according to law to have the value of said property fixed, and duly tender to this defendant the value of said property.'

The cause was heard on the bill, answer, and replication before Mr. Justice BREWER, then circuit judge, and it was decreed that the special verdict did not estop the parties on the question of the value of the land and improvements, and a master was appointed, with directions to ascertain and report (1) the value of the lasting and valuable improvements erected on the land by the complainants before they received actual notice of the defendant's claim; (2) the net annual value of the rents and profits received by the complainants after they received notice of the defendant's title by service of process, which amount was to be deducted from the value of the improvements; (3) the value of the land at the time the complainants went into possession thereof, or when they commenced to pay taxes thereon, as the case might be. On the 8th of November, 1890 the master reported that the value of the lasting improvements put upon the land by the complainants prior to receiving notice of the defendant's claim to the land was $10,368; that the value of the rents since the service of the process in ejectment was $180, leaving $10,188 as the net value of the improvements after deducting the rents; that the value of the land at the time the complainants became the actual occupants thereof, which was on the 28th day of April, 1881, was $1,300. The order of reference to the master embraced only these matters, but the parties stipulated that the master might report the value of the land without improvements at different dates, which he did as follows: The value of the land March 12, 1886, the date of the verdict in the ejectment suit, was $2,000; 12th of December, 1888, the date of the judgment in the suit, $4,500; 27th of December, 1889, the date of the order of reference to the master, $5,000; and at the date of the master's report, 8th of November, 1890, $5,500. No exceptions were filed to the master's report. J. H. McMurtry, having purchased the land from Rowena Young, was, upon his own motion, substituted as defendant. The court below decreed 'that the defendant has the right to elect whether he will take the value of the land or shall pay for the improvements; and, the defendant having filed in court his election to take the value of the land or shall pay for the improvements; and, the defendant having filed in court his election to take the value of the land, and tendered his deed therefor, and placed the same in the hands of the clerk of this court for future delivery, it is therefore considered and adjudged that, unless said plaintiff within ninety days pay to said defendant the sum of five thousand five hundred dollars, with interest from the date of the master's report, November 8, 1890, at seven per cent, per annum, this injunction shall stand dissolved, and this cause be dismissed, at plaintiff's costs. ' From this decree the complainant appealed.

The sections of the Nebraska statute most material to the consideration of the case read as follows:

'4386. If upon the final hearing there shall be found a balance in favor of the occupant or unsuccessful claimants, the person proving the better title may either demand of the occupant or claimant the value of the real estate without improvements, as shown by the appraisement, and tender a general warranty deed for the real estate in question to such occupant or claimant, or he may pay into court the balance so found due such occupant or claimant within such time as the court shall allow in its final decree.

'4387. If the successful claimant shall elect to pay, and does pay, to the occupant or claimant the balance found due him on the final hearing within such time as the court shall direct, then a writ of possession shall be issued in his favor against such occupant, or decree shall be entered against such unsuccessful claimant, as the case may require.

'4388. If the successful claimant shall elect to receive the value of the real estate without improvements, to be paid by the occupants or claimant within such time as the court shall direct, and shall tender a general warranty deed for such real estate to the occupant or claimant, and such occupant or claimant shall refuse or neglect to pay said sum of money to the successful claimant within the time allowed by the court for that purpose, then such successful claimant shall deposit with the clerk of the court the amount found due the occupant or claimant, and thereupon a writ of possession shall be issued in favor of such successful claimant, or decree shall be entered in his favor, as the case shall require.

'4389. The occupant or claimant shall in no case be evicted from the possession, or deprived of his right in the premises, except as provided in the two preceding sections; and, in case the successful claimant shall neglect to elect to take said real estate with improvements, or to convey the same to the occupant or claimant within such time as the court shall direct, then decree shall be entered in favor of the occupant or claimant upon his paying into the court the value of the real estate without improvement. Such decree shall have the effect to transfer and convey to such occupant or claimant the title and rights of the successful claimant. ' Cobbey, Consol. St. Neb. 1891, c. 47, Secs. 4386-4389, pp. 933, 934.

N. S. Harwood, John H. Ames, and T. M. Marquett, for appellants.

Joseph R. Webster and R. S. Hall, for appellees.

Before CALDWELL and SANBORN, Circuit Judges, and SHIRAS, District Judge.

CALDWELL Circuit Judge, (after stating the facts.)

It is objected by the appellees that the mode of proceeding adopted by the complainants does not conform to the requirements of the occupying claimant's law, and that the suit was brought out of time. Where a state statute creates a right and prescribes a mode of proceeding to enforce it in the state courts, the courts of the United States, in that state will enforce the right, but not always in the mode prescribed for enforcing it in the state courts. The state courts may be authorized to enforce an equitable right by an action at law, or a legal demand by a suit in equity, or to confound the two jurisdictions in the same suit. But in the courts of the United States the distinction between legal and equitable rights and modes of proceeding must be observed. Those courts will enforce the right by the appropriate remedy, having regard to these distinctions. The Nebraska statute does not contemplate any proceeding to establish the occupant's claim for the improvements until after final judgment has been rendered in favor of the plaintiff in the ejectment suit. Any time after that, and while the occupant remains in possession, he may secure the benefits of the statute by applying to the court for the appointment of three appraisers, who are to assess the value of the land at the time the occupant went into possession, and the value of the valuable and lasting improvements erected thereon by the occupant prior to the time he received actual notice of the owner's claim, and to take and state an account of the rents and profits of the land received by the occupant after he had notice of the...