6 Iowa 466 | Iowa | 1858
— -The statute provides, that upon a sufficient showing, the district court may set aside the report of referees, in whole or in part, and refer the matter anew, or any part thereof, either to the same, or other referees. Code, section 1796.
The only showing attempted to be made in this case, is
¥e think the plaintiff was properly allowed payment for the use and occupation of his land, from the time that his title accrued, to the time the defendant was, by agreement, to surrender the possession. The fact that the amount allowed for rents was deducted from the value of the improvements, is no valid objection to the judgment of the court. The submission executed by the parties, stipulates that the referees are to ascertain the value of the annual rents, and that the defendant is to be paid for his improvements, after deducting the amount of the rents as fixed by the report of the referees. As this was the agreement of the parties, there was no error in the judgment of the court which carried the same into effect.
At common law, the damages in ejectment were merely .nominal. Adams on Ejectment, 289. If the plaintiff
The remaining objection of the defendant is, that the district court rendered judgment for the plaintiff, without making payment for the improvements, a condition precedent to the issuing of execution. The plaintiff was entitled to judgment for the title and possession of the land. This judgment, the defendant could not resist, as he had nothing to oppose to the plaintiff’s legal title. He now only claims the right to continue in possession, until his improvements are paid for. It must be borne in mind, that the judgment of court only settles the rights of the parties, according to their agreement, and the report of the referees. By this agreement, the defendant was to remain in possession of the land until March 1st, 1857, at which time the plaintiff was to pay him for his improvements, deducting the rents, and he was to surrender possession of the premises to plaintiff in good condition.
Under the occupying claimant law, (Code, section 1233), the defendant is entitled to remain in possession after judgment against him, until paid for improvements, on filing a petition to have their value ascertained, and to obtain payment for the same, before surrendering possession. This petition, we think, the defendant can at any time file, if he is apprehensive that he will be turned out of possession before the requisite payment is made. We think, however. he should not be driven to another action to effect this.
Judgment affirmed.