Tice v. Fleming

• Citation: 72 S.W. 689,173 Mo. 49
• Parties: TICE v. FLEMING.
• Decision Date: 24 February 1903
• Court: United States State Supreme Court of Missouri

72 S.W. 689

173 Mo. 49

TICE v. FLEMING.

Supreme Court of Missouri, Division No. 2.

February 24, 1903.

EJECTMENT — JUDGMENTS — DAMAGES AND RENTS — IMPROVEMENTS — SET-OFF — LIMITATIONS — CONSTITUTIONAL LAW.

1. The statute permitting an occupant of land, who has been ejected, to recover for improvements made by him in good faith prior to notice of the adverse title, is not in violation of Const. art. 2, § 20, prohibiting the taking of property for private use without the consent of the owner, since the owner is presumed to know of his ownership of the land, and what is being done thereon, and is at fault when he permits the occupation to continue and improvements to be made without giving notice of his superior title.

2. Rev. St. 1899, § 4297, limiting the time within which an action can be brought on a judgment to 10 years, does not apply to a judgment recovered before such statute was enacted, and under Rev. St. 1889, § 6796, which fixed the limit at 20 years.

3. Where plaintiff in ejectment recovered judgment of restitution and for damages and rent, and defendant thereafter recovered judgment against plaintiff for improvements, and plaintiff sued to recover on his judgment for damages and rent, the amount thereof, being less than defendant's judgment, should be credited on defendant's judgment.

Appeal from Circuit Court, Texas county; W. N. Evans, Judge.

Action by Perry G. Tice against Frank Fleming to recover on a judgment for damages and rent rendered in a suit for ejectment, and subsequent rent, and which defendant sought to have set off against a judgment recovered by him for improvements. From a judgment allowing the setoff, plaintiff appeals. Affirmed.

On October 7, 1899, plaintiff filed in substance the following petition:

"Plaintiff states that on the 22d day of May, A. D. 1889, in the circuit court of Missouri, within and for Texas county, and at the May, 1889, term thereof, said court being one of general jurisdiction in a certain ejectment suit then therein pending, where this plaintiff was plaintiff and this defendant was defendant, this plaintiff recovered judgment, which was duly given by said court, against this defendant, for the possession of the southeast quarter of section twenty-five (25), township twenty-eight (28), range nine (9) west; said real estate being situate in Texas county, Missouri; also for the sum of $85.92 for damages and rents; also for $3 per month from the rendition of said judgment until the possession of said lands hereinbefore described should be restored to this plaintiff; also for his costs, amounting to $26.40; and also for a writ of restitution to be issued on said judgment. Plaintiff further says that no part of said judgment has ever been paid or satisfied; that the possession of said premises has never been restored to this plaintiff. * * * Plaintiff further states that after the rendition of said judgment, to wit, on the 22d day of May, 1889, defendant instituted in the circuit court of Missouri, within and for Texas county, said court being one of general jurisdiction, a suit against this plaintiff for improvements made in good faith on the lands aforesaid, and then and thereupon obtained a temporary injunction from the said court, by which the judgment hereinbefore mentioned for the possession of said real estate and damages was stayed, and its execution enjoined; that the said temporary injunction remained in full force for the space of six months, to wit, until the 22d day of November, 1889, at which time the same was dissolved."

The prayer is for $650.62 and possession of land described in the petition.

The answer, filed November 23, 1899, properly admits the judgment sued on, admits the injunction of May, 1889, denies other allegations, and proceeds as follows:

"Defendant, further answering, states that he obtained an injunction against this plaintiff at the May term, 1889, staying the judgment of plaintiff for the possession of the lands described in plaintiff's petition and the judgment for damages, $85.92, and rents and profits, and enjoining execution thereon until such time as suit for improvements on said lands made by defendant in good faith were determined, and until whatever judgment this defendant might recover against this plaintiff should be fully paid off and discharged; and that said injunction and restraining order has never been dissolved, but stands in full force and effect. Defendant further states that at the November term, 1889, of the circuit court of Texas county, Missouri, the suit for improvements on the land described in plaintiff's petition, where this defendant was plaintiff and this plaintiff was defendant was duly tried, and that this defendant recovered judgment against this plaintiff for the sum of $350 for the value of his improvements made on said lands, together with his costs in said suit, amounting to $71, and that he retain possession of said lands until said judgment was fully paid off and discharged. Defendant says that no part of said judgment has ever been paid, but that the whole amount thereof, with interest thereon, remains due and unpaid, except $20 on the costs of said suit, which would leave a balance due on said judgment and costs of $401, with interest thereon at six per cent. per annum from the rendition thereof. Defendant says that the judgment of plaintiff for damages would be a set-off against the judgment of this defendant to the amount of $85.92 and rents and profits at $3 per month for six months, amounting to $18, making a total of $103.92, and would be entitled to be credited on defendant's said judgment, leaving balance due this defendant on his judgment for improvements of $246.08. Wherefore, defendant asks that so much of his judgment for improvements on said land as will satisfy plaintiff's judgment for damages, rents and profits be set off against plaintiff's said judgment for damages, rents, and profits. Defendant, for further answer, says that the rental value of said lands was caused by the improvements placed thereon by this defendant, and defendant says he is not chargeable with rents and profits thereon."

The ten and five year limitation statutes are properly pleaded. The replication is general denial.

W. E. Barton, for appellant. Orchard & Saye, for respondent.

FOX, J. (after stating the facts).

It will be observed from the petition in this cause that the plaintiff, in addition to the collection of the money judgment, included in his action the recovery of the land, for which he had recovered judgment, by the judgment upon which this suit is brought. However, will say that, from the brief filed by appellant, this part of the claim, as alleged in the petition, is abandoned; hence will not regard that as being before this court for review. See remark of appellant in brief, "that the only question in this appeal is, can this $85.92, with interest, be collected?" In the answer in this case, there is pleaded the statute of limitation, and also a judgment for improvements, which is claimed as a set-off against the judgment sued on for $85.92. This judgment, upon which suit is brought for its collection, was rendered for damages, rents, and profits in the original ejectment suit between these...