Stump v. Hornback

• Decision Date: 19 December 1887
• Citation: 6 S.W. 356,94 Mo. 26
• Parties: Stump et al. v. Hornback et al., Appellants
• Court: Missouri Supreme Court

6 S.W. 356

94 Mo. 26

Stump et al. v. Hornback et al., Appellants

Supreme Court of Missouri

December 19, 1887

Appeal from St. Louis Court of Appeals.

Reversed and remanded.

C. W Wilson for appellants.

(1) The judgment is in violation of the constitution of Missouri, and should be reversed on that account. Const. Mo. (1875) art. 2 sec. 20; Dickey v. Tennison, 27 Mo. 373; Osborne v. Hart, 24 Wis. 89 and 92; Sadler v. Langham, 34 Ala. 311 and 330; Taylor v. Porter, 4 Hill (N Y.) 140; Clark v. White, 2 Swan (Tenn.) 548, 549; Freight Co. v. Mayor, 4 Cold. (Tenn.) 419, 428; St. Charles v. Nolle, 51 Mo. 122, 124, 125; Walls v. City of Weston, 22 Mo. 388; Neenan v. Smith, 50 Mo. 529; City of St. Louis v. Allen, 53 Mo. 44, 56, 57; Seibert v. Copp, 62 Mo. 186; Carlin v. Cavender, 56 Mo. 289.

T. F. McDearmon for respondents.

The statute upon which this action is based is constitutional. Lee v. Bowman, 55 Mo. 400; Russell v. Defrance, 39 Mo. 506; Dothage v. Stuart, 35 Mo. 251; Green v. Biddle, 8 Wheat. 1.

OPINION

Brace, J.

In an ejectment suit brought in the circuit court of St. Charles county the appellants recovered judgment against the respondents for 97.47 acres of land in said county. The present suit was instituted by respondents in the same court under Revised Statutes, 1879, section 2259, to recover compensation for improvements made on said land in good faith by respondents and their ancestor. On the trial of the case the jury found the value of the improvements to be $ 1,960, and "the value of the land, aside from the improvements, to be $ 1,462.05," and the judgment was, "that the plaintiffs within one year from this date pay to the defendants the sum of $ 1,462.05, and that said defendants thereupon make and deliver to the said plaintiffs a conveyance with general warranty for said lands, and in the event of the failure of defendants or either of them, from legal inability or otherwise, to make and deliver to plaintiffs said deed upon the payment of said sum of $ 1,462.05, it is ordered that the plaintiffs pay into court said sum of money for the use of the defendants, and upon such payment, it is ordered * * * that the title to said real estate be divested from the said defendants, and vested in these plaintiffs forever, and it is further ordered * * * that, in case plaintiffs make default in the payment of said sum to the defendants within the time herein specified, the defendants shall have possession of said land discharged from all claims of the plaintiffs." From this judgment, respondents appealed to the St. Louis court of appeals, where the judgment was affirmed, and they have prosecuted their appeal to this court.

It is here urged that said judgment is in violation of section 20 of the Bill of Rights, article 2, of the constitution of 1875, which declares, "that no property can be taken for private use, with or without compensation, unless by consent of the owner, except for private ways of necessity, and except for drains and ditches across the lands of others for agricultural and sanitary purposes in such manner as may be prescribed by law." There is nothing in the record to show that respondents consented to this judgment, and the case falls within neither of the exceptions of the constitutional provisions, and the effect of the judgment is to take the property of one person for the private use of another, with compensation, but without his consent, and is, consequently, in violation of the article above quoted. And if, in conformity with the provisions of sections 2263 and 2264, Revised Statutes, 1879, when properly construed, those sections are unconstitutional.

It must be conceded that if those sections be read alone, disconnected from the text of the whole act, they give good color for the form of judgment entered in this case, but when considered in their connection in the entire enactment, in the light of its general purpose and object, and of the character and form of the proceeding adopted for the accomplishment of that purpose, as disclosed thereby, it will become apparent that while the judgment is, those sections of the statute are not, obnoxious to the provisions of article 2 of the constitution. It may be as well to premise the consideration of this question by the expression of the opinion, that if said sections are unconstitutional by reason of their infraction of the rights of private property, as expressly guaranteed by article 2, they would have been unconstitutional as well before as since the adoption of that article, since the insertion thereof in the constitution of 1875 does no more than merely emphasize and make more prominent a vital principle breathing through and permeating the whole body of the present as of each preceding constitution of the state, as it must the organic law of every government among men instituted to secure to a free people protection to life, liberty, and property.

Laws in their general scope and purpose like unto ours have been passed in very many states of the Union, and have been upheld by the courts, both state and national. The principle upon which they are founded is aptly stated in an early case upon the Vermont statute: "The action for betterments * * * is given on the supposition that the legal title is found to be in the plaintiff in ejectment, and is intended to secure to the defendant the fruit of his labor, and to the plaintiff all he is justly entitled to; which is his land in as good a situation as it would have been had no labor been bestowed thereon. The statute is highly equitable in all its provisions, and would do exact justice if the value, either of the improvements or of the land, was always correctly estimated. * * * It gives to the possessor not the expense which he has laid out on the land, but the amount which he has increased the value of the land by his betterments thereon; or, in other words, the difference between the value of the land when the owner recovers it and the value if no improvements had been made. If the owner takes the land together with the improvements at the advanced value which it has from the labor of the possessor, what can be more just than that he should pay the difference? But if he is unwilling to pay this difference, by giving a deed as the statute provides, he receives the value as it would have been if nothing had been done thereon." Cooley's Const. Lim. [4 Ed.] 485, and authorities cited in note 1, p. 486; Ross v. Irving, 14 Ill. 171.

This equitable principle was first grafted upon our statutory act regulating the action of ejectment in 1825, and has remained substantially the same ever since. The form it there assumed, and has since maintained, is that of an equitable proceeding by way of injunction to restrain the successful claimant by paramount title of real estate in an action of ejectment, who has obtained a judgment for the recovery thereof, from entering into possession of the land under his judgment until he has paid the occupying claimant for his improvements made in good faith thereon; the value thereof to be ascertained in the manner provided for in the statute. The object was not to deprive him of his land with or without his consent, or the possession of it, but simply to withhold the possession until he paid the occupying claimant the value such claimant had added to the land by his improvements. The law said to the owner, you have sought the assistance of the law to enable you to recover your land from another, who in good faith believed it was his, and in such faith has enhanced the value of your property, now, you shall have possession of it, but not until you yourself have done "that justice which the law loveth," and paid that enhanced value to him who hath earned it. In this light has this proceeding been regarded by this court in such cases as have come before it involving its construction; consequently, in Malone v. Stretcher, 69 Mo. 25, it was held that the proceeding to enjoin must be instituted before eviction from the premises, and in the court in which the judgment in ejectment was rendered; and in Russell v. Defrance, 39 Mo. 506, that the court cannot enter judgment against the plaintiff in ejectment for the value of the improvements and enforce the same by execution.

It follows, from the principle of these cases, that the nature of the proceeding is simply to enjoin the execution of process on the judgment of ouster, in the ejectment, in which affirmative relief cannot be granted to the claimant in possession, even to the extent of a judgment for the value of his improvements. So far as he is concerned, unless the owner consents, he must take their value and give up the possession of the land; the only relief the law gives him is negative in restraining the plaintiff from taking possession under his judgment until he pays the claimant for his improvements. That a law granting him this relief is not unconstitutional is...