Hardeman v. Turner
3 Indian Terr. 338
Ct. App. Ind. Terr.
1900
Check Treatment
Clayton, C. J.

The assignment of errors in this case filed by appellants presents ten specifications of error. We are informed by their brief, however, that they rely upon only two of them. They are — First, that the court erred in permitting the plaintiffs below to recover against the defendants below the rental value of the entire premises including the land and the improvements; and, second, that the court erred in its judgment in fixing the future rental value of the property.

*342Ejectment. Ownership of mentgVe~ Upon the first proposition it is the contention of defendants’ counsel that, notwithstanding the judgment in the original case, they were and continued to be the owners of the improvements which they had erected on plaintiffs’ lot, or, at least, should be so treated in this case, and therefore the court, in arriving at the amount with which the defendants should have been charged, should only have assessed against them the rental value of the lot, instead of the lot and improvements combined, as was done; that is, that, after plaintiffs recover against defendants in ejectment the possession of land upon which defendants in good faith have erected permanent and valuable improvements, the judgment, in effect, makes the plaintiffs the owners of the land, and the defendants the owners of the improvements, until paid for, and therefore, pending the payment, the defendants should not be charged with rent for their improvemeuts, but only for the land. The court, however, treated ^he judgment in ejectment as a finding, or rather as an establishment of the fact, that the title to both land and improvements was in the plaintiffs, but charged them, under the statute, with the value of the improvements, and from the date of the judgment gave the defendants credit for the lawful interest upon that amount, and, they being in possession, charged them with rent. Whatever else may be said, the justice of such a procedure cannot be denied. Of course, they could not both enjoy the occupancy of the building and demand interest on its value; and if they were released from paying rent on the building, and not allowed to draw interest, the result would be about the same as the course adopted by the court. But we are of the opinion that under the statute (sections 2645, 2647, Mansf. Dig.; sections 1929, 1931, Ind. T. Ann. St. 1899) the procedure adopted by the court was a proper one. The statute reads as follows:

“Sec. 2645 (1929). The court or jury trying such *343cause shall assess the value of such improvements in the same action in which the title to said land is adjudicated; and on such trial, the damages sustained by the owner of the lands from waste, and such mesne profits as may be allowed by law, shall be assessed, and if the value of the improvements made by the occupant and the taxes paid as aforesaid shall exceed the amount of said damages and the mesne profits combined, the court shall enter an order as a part of the final judgment providing that no writ shall issue for the possession of the lands in favor of the successful party until payment has been made to such occupant of the balance due him, for such improvements and the taxes paid; and snch amount shall be a lien upon the said land, which may be enforced by equitable proceedings at any time within three years after the date of such judgment.”
“Sec. 2647 (1931). In any such equitable proceeding the court may allow to the owner of the lands as a set-off against the value of such improvements and taxes the value of all rents accruing after the date of the judgment in which it has been allowed. ”

*344E;Jectmeut. Mesne profits. *343The defendants, believing themselves to be the owners of the land, had, in good faith, erected the building upon it. At common law, under such circumstances, the title would vest in the landowner without compensation from him to the builder of the improvements. The statute was enacted, not for the purpose of changing the rule as to title or of vesting it in the defendant, but by the judgment to ascertain its value, aud then give a lien on the premises for that amount, and a right of possession until it should be paid. The language of the statute is, not that he shall have title, but that ‘ ‘such amount shall be a lien on the said lands which may be enforced by equitable proceedings at any time within three years after the date of such judgment.” Defendants have not enforced or attempted to enforce their lien, but have held possession and enjoyed the usufruct of the *344premises, placing them in a similar attitude of a mortgagee who takes possession of the mortgaged premises before foreclosure. And so it has been decided by the supreme court of Arkansas. In the case of State vs Passmore, 61 Ark. 363, 33 S. W. 214, the court say: “Passmore, after remaining in possession for some years, brought this suit in equity to enforce his lien. This he, had the right to do, but the statute provides that, ‘in any such equitable proceedings the court may allow to the owner of the lands, as a set-off against the value of such improvements and taxes, the value of all rents accruing after the date of the judgment in which it has been allowed. ’ As the county had been charged with the value of the improvements, we see no reason why Pass-more should not be charged with all rents received by him after the decree fixing the value of his improvements.” It will be observed that the language of the statute is, not that the rent of the land only shall be set off against the value of the improvements, but “all rents” shall be so disposed of. If the defendants were not allowed interest on the value of their improvements as found by the judgment, then, of course, they should not be charged with rent; but in this case they were allowed such interest, and it would be an act of gross injustice to allow them interest on the value of their improvements, and at the same time the rents and profits for their use, both to be paid by plaintiffs. Charging the defendants with rent and crediting them with interest is substantially the same as paying off the value of the improvements with the rent of the land alone. In other words, during the time of their occupancy of the premises they enjoy all of the benefits that they could enjoy if the other method were adopted. In either case, their only right is that .of possession until the value of the improvements is fully paid, and for that they hold a lien on the premises. We therefore see no objection to the method adopted by the court.

*345The next specification of error questions the power of the court to fix the rental value of the premises in the future. The court found at the date of the trial of this issue that there was due defendants as the value of their improvememts, in excess of the rents, the sum of $188.68, and ordered that when the plaintiffs should pay to defendants said sum, with interest thereon from that date at the rate of 6 per cent, per annum, or shall deposit with the clerk of the court a sufficient amount to pay off and satisfy said sum, “or if defendants shall remain in possession of said house and improvements a sufficient time to make the rents upon same at $30 per month satisfy said sum of $188.68 and accrued interest, that then, ten days thereafter, the clerk of this court is directed to issue to plaintiffs their writ of restitution to place them in possession, ” etc. The defendants’ objection to this order is that the court could not determine that because the rental value of the improvements was then $30 per month, as shown by the-proof, that it would continue to remain at those figures in the future; that, in absence of contract or some provision of the statute, the rents for the future could only be determined by proof after the conditions and circumstances which cause rental values to vary and fluctuate shall have transpired. And this contention is technically correct. But in this case the smallness of the amount due necessarily rendered the time in the future when the rents would pay off the indebtedness so near at hand that the court could find, from the proof already adduced, with approximate certainty, the rental value for that time; and, as the writ of restitution has not yet issued, the parties to the suit may still come into court, and upon proper showing have the trifling differences, if any exist, accurately adjusted, and this they should be permitted to do. With this modification, the judgment of the court below is affirmed.

Thomas and Gill, JJ., concur.