184 Mo. 422 | Mo. | 1904
This is an action in ejectment to recover twenty acres in the northwest fractional quarter of section 23, township 51, range 2, east, in Lincoln county. The petition is in the usual form. The defendant is a tenant in possession, and upon his ap
The plaintiff herein moved to strike out all the special plea of the defendants herein, leaving only a general denial. The court overruled the motion to strike out, the plaintiff refused to plead further and elected to stand upon the pleadings, and judgment was entered for the defendants herein, and the plaintiff appealed.
The plaintiff herein, who was the defendant in the former suit, sued out a writ of error from this court, in the former suit, and this court affirmed the judgment of the circuit court in that case, and held that the tax deed under which the defendant therein claimed was void. [Dameron v. Jamison, 143 Mo. 483.]
I.
The single point is urged in this court by the plaintiff, that a judgment in ejectment is no bar to a second action in ejectment, and that the judgment in the former ejectment suit, wherein this plaintiff was the defendent and these defendants, or 4heir ancestors, were the plaintiffs, is no bar to this action, because while the plaintiff herein asked and was accorded affirmative equitable relief in that case, that judgment was not mutual, and, furthermore, that it is not alleged in the answer herein that these defendants have ever paid the plaintiff herein the amount then adjudged to be a lien on the land.
But this is by no means all that the record herein discloses. On the contrary it appears that in the former suit this plaintiff, who was the defendant in that suit, in addition to a general denial and plea of the special and general statutes of limitations, also asked affirma- ■ tive equitable relief. His defenses at law were decided against him, but he was accorded the full relief in equity he asked, and while the plaintiffs therein were adjudged entitled to possession of the land, the defendant therein was given a special lien on the land for all the taxes he had paid, and a special fieri facias was awarded to enforce the same. The judgment was affirmed by this court. This, therefore, was something more than a mere judgment in ejectment. The aid of. a court of chancery was extended to him and he was accorded complete relief according to the full measure of his rights.
It is a misapprehension to say that that judgment was not mutual. The defendant in that action was required to turn over the possession of the land to the plaintiff herein, and a lien on the land for a specific amount was decreed in favor .of the defendant therein and a special execution ordered to enforce the same. That judgment was binding upon both parties. It only remained for the plaintiffs therein to ask that a writ of restitution of the premises be enforced in their favor, and for the defendant to ask that the special execution be enforced in his favor. The judgment in the plaintiffs’ favor was not made .conditional upon their first paying the lien. In this respect that judgment was essentially different from the judgments in the cases of Bell v. Hoagland, 15 Mo. 360; Bennett v. Woody, 137 Mo. 377; Wright v. City of Doniphan, 169 Mo. 601;
In Bell v. Hoagland, supra, the defendant pleaded a set-off. The court held that the matter pleaded could not be set off against the plaintiff’s claim, but could only be enforced in a separate action, and hence did not pass upon the merits of the set-off. It was properly held not to be res adjudicaba in a separate action upon the claim thus attempted to be set off. '
Bennett v. Woody, supra, was a condemnation suit to establish a public road. It appeared that a previous-suit for a condemnation of the same road had been prosecuted, in which the road was ordered to be opened, “whenever the petitioner should pay the respondent his damages therefor, assessed at $50, and all hosts.” The judgment therein was, therefore, properly conditioned upon the prepayment of the damages assessed to the owner whose property was to be taken for public use, and followed the mandate of the Constitution of this State in that regard. [Sec. 21, art. 2, Constitution.]
In condemnation proceedings the public has a right to abandon the proceedings even after judgment, because until the judgment is rendered it cannot be known how much it will cost to acquire the land for public purposes, and when the judgment fixes that amount, the public must always be allowed to abandon the attempt to condemn if the damages to be paid exceed the ability of the public to pay, or if, in the judgment of the public officers in charge of the matter, the price to be paid for the land exceeds the benefits which the public will acquire by the establishment of the road, or highway. [Simpson v. Kansas City, 111 Mo. 237; Eyssell v. St. Louis, 168 Mo. l. c. 617.]
Therefore, it was explicitly held in Bennett v. Woody, supra, that as the prior condemnation had been conditioned upon the prepayment of the damages to the property owner for the land taken, and as it did not appear that the same had been paid, but the proceed
Wright v. City of Doniphan, supra, simply held that the fact*that the city had permitted a person to occupy a portion of a highway and had assessed taxes thereon, which such occupier had paid, did not estop the city from afterwards claiming that the land was rightfully a part of the street, for the acts or admissions or omissions of the public officers, who were, in that respect, trustees, could not estop the public, who were the cestuis que irustent. That case has no hear-, ing on the case at bar.
The citation from 2 Black on Judgments, sec. 548, is only to the effect that judgments must he mutual, and does not affect the judgment under consideration here, for it-has already been demonstrated herein that that judgment was mutual.
The case of Commonwealth v. Pejepscut, 7 Mass. 399,'was an information instituted by the Attorney-General against the defendants for intrusion upon certain public lands. The defendants pleaded a former similar proceeding, which had resulted in a judgment for the defendants, upon condition, however, that they should, within six months, execute proper releases to the commonwealth to certain other lands, hut that upon the failure of the defendants so to do, the judgment should he a nullity. The defendants pleaded this as a bar to the second action. The-Attorney-General, however, by reply, set up that the defendants had not complied with the condition of the former judgment and had not executed said releases. The question arose upon the sufficiency of the reply, and it was held to he a' good reply, and that the former action was no bar to the second suit. It is manifest that this was proper, for the defendants could not take advantage of their own wrong in not complying with the condition of the
But the statement of that ease shows that it is not at all decisive of the case at bar. ®
The judgment in the former case here pleaded was not upon condition. It did not provide that the plaintiffs therein should have restitution of the premises upon condition of a prepayment by them in a specified time of the taxes the defendant had payed. On the contrary that judgment awarded the possession to the .plaintiffs, and charged the land with a lien for the taxes the defendant had paid. Each, therefore, was entitled to an immediate execution for the enforcement of the portion of the judgment which was in his favor and neither was obliged to wait until the other first acted. All that remained for the defendant to do under the judgment was to ask for the issuance of the special execution, ordered by the judgment, and thereby to collect the judgment. This could have been done by the defendant at any time during the life of the judgment. It is his own fault if he did not do so. And his fault or failure in that regard could not affect the former judgment, nor deprive it of its force or validity, and, therefore, could not make that judgment any the less res adjudicata of this controversy.
The judgment of the circuit court is right, and it is affirmed.