Sutton v. Anderson

• Citation: 31 S.W.2d 1026,326 Mo. 304
• Parties: T. F. Sutton, Appellant, v. Ben M. Anderson, Appellant
• Decision Date: 11 September 1930
• Court: United States State Supreme Court of Missouri

31 S.W.2d 1026

326 Mo. 304

T. F. Sutton, Appellant, v. Ben M. Anderson, Appellant

Supreme Court of Missouri

September 11, 1930

Appeal from Audrain Circuit Court; Hon. James A. Cooley Special Judge.

Reversed and remanded (with directions).

Abbott Fauntleroy, Cullen & Edwards and W. W. Botts for Sutton as appellant.

(1) One judgment may be set off against another, and this rule applies to actions arising under the Occupying Claimants Acts and it is lawful for a court to order money deposited in court on account of a judgment for rents and profits to be applied by way of set-off to the satisfaction of a judgment rendered in an independent action in favor of the occupying claimant for improvement. Tice v. Fleming, 173 Mo 49, 96 Am. St. 479; Montgomery v. Gahagan, 246 Mo 320; Dalkins v. Griffin, 195 Mo. 439; Tice v Fleming, 188 Mo. 301; Rodney v. Gibbs, 184 Mo. 1; Creasey v. Creasey, 175 Mo.App. 245; R. S. 1919, sec. 1300; Ford v. Motor Car Co., 209 Mo. 144; State ex rel. Motor Car Co. v. Allen, 239 S.W. 105; Wells v. Cochran, 35 L. R. A. (N. S.) 142, 88 Neb. 367, 129 N.W. 533; Jarrett v. Goodnow, 32 L. R. A. 321, 39 W.Va. 602, 20 S.E. 575 (annotated); Memphis & C. Railroad Co. v. Greer, 4 L. R. A. 858, 87 Tenn. 698; State ex rel. v. Evans, 176 Mo. 310; Stump v. Hornback, 109 Mo. 279; Standifer v. Morris, 25 Okla. 802, 108 P. 413; Mercer v. Justice, 65 P. 219; State ex rel. v. Foard, 251 Mo. 61; Marlow v. Liter, 87 Mo.App. 587; Central Appalachian Co. v. Buchanan, 90 F. 454; Frye-Bruhn Co. v. Meyer, 121 F. 533; De Laval Separator Co. v. Sharpless, 134 Iowa 28, 111 N.W. 438. (2) When money is deposited in court on conditions stated it is held subject to said conditions, and the court has power and jurisdiction to make orders relating to it. If the conditions are not waived by the party making the deposit or modified by order of the court the acceptance by the other party, even under protest, of benefits under the conditional deposit, such as receiving part of the money or taking possession of land, causes the said other party to become bound by the conditions imposed. State ex rel. Anderson v. Roehrig, 8 S.W.2d 998; Sec. 1951, R. S. 1919; State ex rel. Terry v. Allen, 308 Mo. 230; Terry v. Hague, 251 S.W. 777; Fulton v. Fisher, 239 Mo. 16; 28 Am. & Eng. Encyc. Law, 17; Adams v. Helm, 55 Mo. 468; Haeussler v. Duross, 14 Mo.App. 103. (3) Plaintiff, having brought his action for improvements before he was ousted, and having retained possession of the land under injunction for five years, or until the judgments for rents and profits became final, the surrender of the possession of the land does not affect his right to continue the prosecution of his case for improvements or deprive him of a remedy to enforce his recovery for improvements. Anderson v. Sutton, 293 S.W.2d 770; Fisher v. Edington, 85 Tenn. 23; Shroyer v. Nickell, 55 Mo. 270; Seibel v. Higham, 216 Mo. 121; Leighton v. Young, 52 F. 449; Hannibal etc. Railroad Co. v. Shortridge, 86 Mo. 662; Patillo v. Martin, 107 Mo.App. 653; Hardeman v. Turner, 112 F. 41; Russell v. De France, 39 Mo. 406; Stump v. Hornback, 94 Mo. 26; Cox v. McDermott, 125 Mo. 358. (4) An order made during the pendency of a case, and before final judgment, may at a subsequent term of court be vacated on motion for good cause shown, and such an order is not res judicata, and hence plaintiff was not bound by an order made April 14, 1927, during the pendency of the case. Montgomery v. Gahagan, 246 Mo. 317; Dutcher v. Hill, 29 Mo. 271; Smith v. Ohio Millers Fire Ins. Co. (Mo.), 6 S.W.2d 920; Dean v. Railroad Co., 229 Mo. 425; Gibson v. Rees, 50 Ill. 383; Jeffrey v. Robbins, 167 Ill. 375; Scherer v. Christian (Ky.), 65 S.W. 448; Bursh Elec. Co. v. Western Elec. Co. (C. C. A.), 76 F. 761; Ogden City v. Weaver (C. C. A.), 108 F. 564; Short v. Kidd (Mo.), 197 S.W. 64; State v. Riley, 219 Mo. 667; Iowa v. Illinois, 151 U.S. 238; Reilly v. Perkins (Ariz.), 56 P. 734. (5) An order made outside of the scope and in conflict with the pleading upon which it purports to be based and not based on any motion or other pleading filed in the case by either party is coram non judice and absolutely void, and under this doctrine the order of April 14, 1927, was absolutely void. Reynolds v. Stockton, 140 U.S. 265; Charles v. White, 214 Mo. 206; Roden v. Helm, 192 Mo. 93; Kinser v. Shands, 52 Mo. 326; Keary v. Baker, 33 Mo. 603. (6) Proceedings by ejectment and for betterments are entwined and closely related. One is ancillary to and in aid of the other and between the same parties and the proceedings are treated by the courts as equitable, and when improvements are involved it takes two proceedings to adjust all the equities, and hence the courts may, in addition to the relief provided by statute and as supplementary thereto, make such orders as are just and equitable, such as equitable offset, staying the enforcement of the judgment in ejectment, etc. Stump v. Hornback, 109 Mo. 278; Wells v. Cochran, 35 L. R. A. (N. S.) 142, 88 Neb. 367, 129 N.W. 533; Jarrett v. Goodnow, 32 L. R. A. 321, 39 W.Va. 602, 20 S.E. 575 (annotated); Memphis & C. Railroad Co. v. Greer, 4 L. R. A. 858, 87 Tenn. 698; State ex rel. v. Evans, 176 Mo. 310; Standifer v. Morris, 25 Okla. 802, 108 P. 413; Mercer v. Justice (Kan.), 65 P. 219; State ex rel. v. Foard, 251 Mo. 61; Marlow v. Liter, 87 Mo.App. 587; Ford v. Motor Car Co., 209 Mo. 144; State ex rel. Motor Car Co. v. Allen, 239 S.W. 105; Central Appalachian Co. v. Buchanan, 90 F. 454; Frye-Bruhn Co. v. Meyer, 121 F. 533; De Laval Separator Co. v. Sharpless, 134 Iowa 28, 111 N.W. 438. (7) The statutes of this State permitting an occupying claimant who is ousted by a judgment in ejectment to recover reasonable compensation for improvements is constitutional and defendant in this action waived his right to have this court pass on any constitutional question because he did not, by pleading or otherwise, raise a constitutional question in the court below and by accepting benefits under the judgment and the tender made relating to it, defendant waived his right to question the constitutionality of the features of the Occupying Claimants' Act involved in this action. Tice v. Fleming, 173 Mo. 49; Ross v. Iving, 14 Ill. 174; Miller v. Connor, 250 Mo. 684; Ranney v. Cape Girardeau, 255 Mo. 514; Corbett v. Savings & Loan Assn., 4 S.W.2d 827; Stegall v. Pigment Co., 263 Mo. 723; Wolf v. Fire Ins. Co., 304 Mo. 468, 263 S.W. 846; Zach v. Fidelity & Cas. Co., 302 Mo. 7; Kircher v. Evers (Mo. Sup.), 238 S.W. 1086. (8) The measure of Sutton's recovery is not the cost, be it high or low, but the enhanced value of the land resulting from the permanent improvements which he made. Anderson v. Sutton, 308 Mo. 420; O'Donnell v. Mathews, 284 S.W. 204; Staub v. Phillips, 307 Mo. 577; Anderson v. Sutton, 301 Mo. 61; Sires v. Clark, 132 Mo.App. 537; Armor v. Frey, 253 Mo. 477; Seibel v. Higham, 216 Mo. 143; 31 C. J. 334, sec. 51; 31 C. J. 337, sec. 54; Young v. Commissioners, 53 F. 895; Fletcher v. Brown, 35 Neb. 660; Rzeppa v. Seymour (Mich.), 203 N.W. 63; Acker v. Weadel (Mich.), 210 N.W. 212; 22 Cyc. 26; 15 R. C. L. 25; 9 R. C. L. 952, 953. (9) Plaintiff's cause of action for improvements did not accrue until the entry of final judgment in the ejectment suit and hence it is not barred by limitations. Anderson v. Sutton, 308 Mo. 406; Byrne v. Byrne, 289 Mo. 123; Vaughn v. Langford, 81 S.C. 282, 128 Am. St. 915, 916; Parsons v. Moses, 16 Iowa 440; Henderson v. Langley, 76 Mo. 227; Russell v. Defrance, 39 Mo. 506; Malone v. Stretch, 69 Mo. 25; McLanahan v. Smith, 76 Mo. 428; Jasper County v. Wadlow, 82 Mo. 172; 16 Am. Eng. Enc. Law, 103; Norton v. Reed, 263 Mo. 236; Estes v. Nell, 140 Mo. 639; De Both v. Coal Min. Co., 141 Mo. 497. (10) Considering the attitude assumed by Anderson and the state of the record as Anderson made it, Sutton was entitled to a personal judgment against Anderson for the amount of the undisturbed verdict. Sutton was entitled to special execution conferring power and authority to sell the land mentioned in the petition to satisfy the amount of his recovery and to seize the rents-and-profits money wherever found. Sutton was entitled to a judgment vesting title in him and putting him in possession of Anderson's land mentioned in the petition if the amount of his recovery was not paid within a certain time to be specified in the judgment. Sutton was entitled to subject the rents and profits then in the custody of the clerk of the court to the satisfaction of the amount of his recovery by motion or supplemental bill and injunction. Sutton was entitled to relief on his supplemental and intervening petition filed after the return of the verdict and to have such injunctive orders and decrees made therein as would enable him to subject the land described in the petition and the rents and profits arising therefrom to the payment of the amount of his recovery, and to preserve the status quo pending appeal. Sutton had an equitable lien upon the land and the rents and profits arising from it, and such lien he was entitled to enforce under the allegations contained in said petition, and also under the allegations contained in his amended petition, and this court is authorized to make such an order now or direct the circuit court to make such an order. This court has power and authority to enter or to direct the circuit court to enter such a judgment or decree, for the full amount of the verdict as will create liability on the two bonds which Anderson voluntarily gave; that is to say, the appeal bond for $ 11,000 and the common-law bond of $ 5,000 given April 14, 1927. (11) The amended petition of Sutton, upon which the case was tried, alleged grounds for equitable relief. Montgomery v. Gahagan, 246 Mo. 320; Stewart v. Caldwell, 54 Mo....