Young v. Downey
| Decision Date | 28 June 1898 |
| Parties | Young, Administrator Estate of Lewis Downey, Appellant, v. Downey et al |
| Court | Missouri Supreme Court |
Appeal from the Platte Circuit Court. -- Hon. W. H. Roney, Special Judge.
Affirmed.
James W. Boyd and Benjamin Phillip for appellant.
(1) This is not a suit for "use and occupation" of the land described in the petition, but it is a suit in trespass for the mesne profits received by the defendants while in the unlawful possession of the lands. At common law it was necessary, in order to recover in a case of this kind, to show, first, title to or possession of the premises; second expulsion of the plaintiff; third, reception of rents or profits by defendant; fourth, re-entry by the plaintiff. 26 Am. and Eng. Ency., p. 616, sec. 4 and cases cited. At common law it was necessary to show re-entry by the plaintiff. Under the decisions even a judgment in ejectment was not sufficient, but it was necessary that possession should be restored to the plaintiff before he could maintain suit in trespass for mesne profits. Authorities supra. The petition in this case shows that the title to the property was in the plaintiff's intestate; that the plaintiff's intestate has been ousted from the premises; that rents and profits have been received by the defendant. (2) Under our statute it is no longer necessary for a plaintiff to recover possession of the property before he is entitled to a judgment for mesne profits. He may now sue in ejectment and in that suit ask for the mesne profits received by the defendant and recover them in the same suit together with the land. To this extent the common law has been abrogated by our statute. Under the common law the rents and profits could not be recovered in an ejectment suit by way of damages. Sedgwick & Waite on Trial of Title to Land, sec. 647; Tyler on Ejectment, sec. 838. After recovery in ejectment, trespass for mesne rents and profits was the remedy. Sedgwick & Waite on Trial of Title to Land, sec. 648; Tyler on Ejectment, sec. 838. (3) This administrator could not maintain a suit in ejectment against the defendants, for he has no title to the land. The heir alone can sue in ejectment, but the heir is entitled to recover the rents and profits in his ejectment suit only from the time his ancestor died. He can not recover the rents and profits which were received prior to the time that he obtained title to the land. The right to recover these rents and profits descended to the administrator. Beely v Blakes, 70 Mo.App. 229. As the administrator is the owner of these rents and profits and has no right to sue in ejectment for the land, it follows that if he can not maintain this suit without first instituting a suit in ejectment and recovering possession of the lands therein, he is without remedy. The heir can not sue for these rents because they accrued before the death of his ancestor, and therefore, do not pass to the heir. If the administrator can not recover them in this suit the result is that the defendants, who wrongfully took possession of the property and have collected the rents and profits, will be allowed to keep them without accounting to the heir or to the administrator. This can not be the law. If one is entitled to sue in ejectment for lands of which he has been wrongfully disseized, dies before he brings his suit or while the suit is pending and before judgment, his administrator, at least in equity, will be entitled to recover the rents and profits which have been wrongfully received by the disseizor. Robinson v. Walker, 50 Mo. 19.
Jas. W. Coburn for respondents.
(1) An administrator may have the same remedy for rent unpaid as the deceased would have had. R. S. 1889, sec. 6363. A landlord may recover a reasonable satisfaction for the use and occupation of any lands and tenements held by any person under an agreement not made by deed. R. S. 1889, sec. 6375. (2) To support an action for use and occupation, the plaintiff must prove that the defendant occupied the premises under his permission, or some person under whom he claims; a stranger can not try his title in this form of action; a demise expressed or implied must be proved. 2 Ency. Pleading & Practice, p. 1026; 12 Amer. & Eng. Ency., pp. 756, 757 and notes; O'Fallon v. Boismenu, 3 Mo. 405; Hood v. Matthis, 21 Mo. 313; Cohen v. Kyler, 27 Mo. 122; Hutton v. Powers, 38 Mo. 353; Edmonson v. Kite, 43 Mo. 176; Aull Savings Bank v. Aull, 80 Mo. 199; Robertson v. Railroad, 18 Mo.App. 185; McLaughlin v. Dunn, 45 Mo.App. 645; Sturges v. Botts, 24 Mo.App. 286; Hynes v. Ecker, 34 Mo.App. 658. (3) Privity of contract is not required in actions for money had and received in actions affecting personalty -- but is required in actions concerning realty. Tamm v. Kellogg, 49 Mo. 121. A trespasser can not be sued for use and occupation, nor can a landlord waive the tort and proceed against him as a tenant. Edmonson v. Kite, 43 Mo. 176. (4) Appellant's remedy, if he has any, is by suit in ejectment, as all the authorities hold.
On the twelfth day of March, 1896, plaintiff as administrator of the estate of Lewis Downey, deceased, began suit in the circuit court of Platte county against J. M. Downey and William Rees to recover compensation for the use and occupation by them of certain lands described in the petition.
On August 11, 1896, plaintiff filed in said court his amended petition, which, omitting formal parts, is as follows Plaintiff states that Lewis Downey died intestate in the county of Clay in the State of Missouri, on or about the fifteenth day of June, 1895, and that afterwards to wit, on the day of February, 1896, this plaintiff was duly and regularly appointed the administrator of the estate of said Lewis Downey, deceased, by the probate court of Clay county, Missouri; that he duly qualified as such administrator and gave bond as such in the manner prescribed by law, and that letters of administration were issued to plaintiff upon the estate of said Downey, deceased, by said probate court, and that he is now acting as such administrator, and is in charge of said estate; that at the date of his death the said Lewis Downey was twenty years and six months old; that from the day of , 1876, to the date of his death, the said Lewis Downey, deceased, was the owner of and entitled to the possession of the following described real property, to wit, all of sections twelve, thirteen and twenty-four, in township fifty-four, of range thirty-seven, in Platte county, Missouri, and that during all of said time he was entitled to the possession of said lands, and to all the rents, issues and products thereof. That shortly after said Downey became the owner of and entitled to the possession of said property and while he was in possession thereof, to wit, on or about the first day of January, 1877, the defendants herein wrongfully and unlawfully entered into the possession of said premises and unlawfully and wrongfully held, occupied, used and enjoyed the same from said time down to date of the death of said Downey, as hereinabove stated. That during all of said time the defendants held and used all of said lands exclusively and refused at all of said times to permit said Lewis Downey to enter into the possession of or use or enjoy said premises or any portion thereof or to recognize his ownership thereof or right to the possession, use or benefit thereof, and at the date hereinabove mentioned on which the...
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