| Mo. | Oct 15, 1887
In an ejectment suit brought in the circuit court of St. Charles county the appellants recovered judgment against the respondents-for 97.47 acres of land in said county. The present suit was instituted by respondents in the same court under Revised Statutes, 1879, section 2259, to recover compensation for improvements made on said land in good faith by respondents and their ancestor. On the trial of the case the jury found the valueof the improvements to be $1,960, and “the value of the land, aside from the improvements, to be $1,462.05,” and the judgment was, “that the plaintiffs within one year from this date pay to the defendants the sum of $1,462.05, and that said defendants thereupon make and deliver to the said plaintiffs a conveyance with general warranty for said lands, and in the event of the failure of defendants or either of them, from legal inability or
. It is here urged that said judgment is in violation of section 20 of the Bill of Rights, article 2, of the constitution of 1875, which declares, “that no property can be taken for private use, with or without compensation, «unless by consent of the owner, except for private ways of necessity, and except for drains and ditches across the lands of others for agricultural and sanitary purposes in such manner as may be prescribed by law.” There is nothing in the record to show that respondents •consented to this judgment, and the case falls within neither of the exceptions of the constitutional provisions, and the effect of the judgment is to take the property of one person for the private use of another, with •compensation, but without his consent, and is, consequently, in violation of the article above quoted. And if, in conformity with the provisions of sections 2263 and 2264, Revised Statutes, 1879, when properly con.strued, those sections are unconstitutional.
It must be conceded that if those sections be read ■alone, disconnected from the text of the whole act, they .give good color for the form of judgment entered in this case, but when considered in their connection in the entire enactment, in the light of its general purpose and
Laws in their general scope and purpose like unto ours have been passed in very many states of the Union, and have been upheld by the courts, both state and national. The principle upon which they are founded is aptly stated in an early case upon the Vermont statute: “ The action for betterments * * * is given on the supposition that the legal title is found to be in the plaintiff in ejectment, and is intended to secure to the defendant the fruit of his labor, and to the plaintiff all he is justly entitled to; which is his land in as good a situation as it would have been had no labor been bestowed thereon. The statute is highly equitable in all its provisions, and would do exact justice if the value, either of the improvements or of the land, was always correctly estimated. * * * It gives to the possessor not the expense which he has laid out on the land, but the amount which he has increased the value of the land by his betterments thereon; or, in other words, the difference between the value of
This equitable principle was first grafted upon our statutory act regulating the action of ejectment in 1825, and has remained substantially the same ever since. The form it there assumed, and has since maintained, is that of an equitable proceeding by way of injunction to restrain the successful claimant by paramount title of real estate in an action of ejectment, who has obtained a judgment for the recovery thereof, from entering into possession of the land under his judgment until-he has paid the occupying claimant for his improvements made in good faith thereon; the value thereof to be ascertained in the manner provided for in the statute. The object was not to deprive Mm of his land with or without his consent, or the possession of it, but simply to withhpld the possession until he paid the occupying claimant the -value such claimant had added to the land by his improvements. The law said to the owner, you have' sought the assistance of the law to enable you to recover your land from another, who in good faith believed it was his, and in such faith has enhanced the value of your property, now, you shall have possession of it, but not until you yourself have done “that justice which the law loveth,” and paid that enhanced value to him who hath earned it. In this light- has this proceeding been regarded by this court in such cases as'have come before it involving,its construction; consequently, in Malone v. Stretcher, 69 Mo. 25" court="Mo." date_filed="1878-10-15" href="https://app.midpage.ai/document/malone-v-stretch-8006130?utm_source=webapp" opinion_id="8006130">69 Mo. 25, it was held that the
It follows, from the principle of these cases, that the nature of the proceeding is simply to enjoin the execution of process on the judgment of ouster, in the ejectment, in which affirmative relief cannot be granted to the claimant in possession, even to the extent of a judgment for the value of his improvements. So far as he is concerned, unless the owner consents, he must take their value and give up the possession of the land; the only relief the law gives him is negative in restraining - the plaintiff from taking possession under his judgment until he pays the claimant for his improvements. That a law granting him this relief is not unconstitutional is supported by the great weight of authority in the states where the question has been passed upon. See the long list of cases cited in Cooley on Const. Lim. [4 Ed.] note 1, p. 486; also 2 Story’s Eq. 799 ; and 2 Kent Comm., 335, 336, and notes. That the granting of relief in this form tó the occupying claimant might work no greater hardship to the plaintiff than is absolutely necessary to ensure justice to the former, sections 2262 to 2266, inclusive, were enacted to provide a modus mvendi for Mm. If, under section 2262, he elects to relinquish the land to the claimant and to take its value, aside from the improvements, instead of paying for the improvements, then, under section 2263, “if the value of the improvements exceeds the value of the land, aside from the improvements, the court may order that the occupying claimant shall, by a time to be specified in the order,' take the land and pay the ascertained value thereof to the plaintiff, and in default of such payment, the plaintiff shall take possession of the land discharged
The power of the court to order the claimant to take the land and pay the value thereof (sec. 2268), and upon payment of such value to require the plaintiff to make the claimant a conveyance of the land (sec. 2264), as well as to order that the land shall be divided between the occupying claimant and the plaintiff (sec. 2265), is dependent upon the consent of the plaintiff to take the value and relinquish the land. Sec. 2262. In other words, the court has no power to divest him of the land, either in whole or in part, except in answer to his own request for leave to relinquish the land. This is evident 'as to part, by the terms of section 2266, “no partition shall be ordered if the plaintiff insist upon his right to retain the land.” Tet, to sustain the judgment rendered in this case, we would have to hold, that, although the court had no power to take from the plaintiff an undivided moiety of his land, it had power to take the-whole of his land, without his consent. Such a construction must be faulty; it is absurd;' it is not consistent with the well-defined limits of the principle upon which legislation of this character has been, and can be, upheld. It is inconsistent with the general character and scope of the enactment, and would bring sections 2263 and 2264 within the interdiction of the constitution. It would be to convert those sections of the act, evidently intended to confer a benefit upon the plaintiff and to relieve him from a strained situation, into an engine for the destruction of his constitutional rights. Such a
By the construction we have given the act, reading the power given to the court to make the orders therein recited as the predicate of, and its exercise the answer to, plaintiffs’ prayer for leave to relinquish the land, those sections are brought into harmony with the whole enactment and the constitution. This construction would be moré obvious, if sections 2263, 2265, and 2266, in the order named, appeared in one section, and the phraseology of section 2266 was as follows,- “unless the said plaintiff shall insist upon his-right to keep the said land,” and section 2264 followed as a separate section, requiring the plaintiff, “ whenever allowed to relinquish the land, upon payment, to make a deed,” etc. Now this is the very condition in which we find this act when it was originally passed in 1825. As aids in construing a doubtful statute, all acts on the same subject may be taken together and examined in order to arrive at the true result. Sedgwick on Con. Stat. Law, 209. And although when a statute differs in its language from a prior statute on the same subject it is an intimation that a different construction is intended (Rich v. Keyser, 54 Pa. St. 86), yet this rule does not obtain when the change is one of phraseology merely and the sense remains the same. Burwell v. Tullis, 12 Minn. 572" court="Minn." date_filed="1867-07-15" href="https://app.midpage.ai/document/burwell-v-tullis-7962319?utm_source=webapp" opinion_id="7962319">12 Minn. 572.
Tracing this act through its successive revisions we find that, while its arrangement has been changed, and, from time to time, its phraseology, to some extent, yet its sense remains the same ; that sense more obvious and striking, however, in the first act than in any of its subsequent revisions. As a curious illustration of how an act' may sometimes be unintentionally revised into relative obscurity, compare sections 2262 to 2266, inclusive, with the same matter contained in the act of 1825, which is as follows : “ Sec. 3. * * * It shall also be lawful
We hold the act of 1825, as it now appears in Revised Statutes, 1879, from section 2259 to 2268, to be constitutional, and the judgment entered in this case unauthorized by that act, for which reason the judgment is reversed and the cause remanded to the circuit court for entry of a proper judgment in accordance with this opinion. And appellants having neglected or refused to exercise their privilege of election to take the value of the land aside from the improvements, the injunction will be made perpetual and appellants forever enjoined
On the other questions discussed, we concur in the opinion of the St. Louis court of appeals (15 Mo. App. 367" court="Mo. Ct. App." date_filed="1884-04-15" href="https://app.midpage.ai/document/stump-v-hornbeck-8258849?utm_source=webapp" opinion_id="8258849">15 Mo. App. 367).