This suit was instituted in the Circuit Court of Boone County by Ben M. Anderson against *Page 412 T.F. Sutton to recover damages and the monthly rents and profits for the use and occupation of certain real estate described in the petition. The title to the land and the right of the possession thereto had been litigated and adjudged between the parties in favor of Anderson, a year or so previous to the institution of this suit.
After the trial of the ejectment suit against Sutton, he brought in the Circuit Court of Boone County a suit to recover the value of improvements he claims to have been made by him on the premises while he was in possession of and cultivating the land mentioned.
When this case was called for trial, the court upon motion consolidated the two cases, that for rents and that for improvements, into one case, and tried them as one, to which action of the court the appellant objected and saved his exceptions.
I. This action of the trial court was clearly erroneous, but in justice to the learned trial judge who tried the case, it is proper to say that the error committed was in allConsolidation probability due to the suggestion of this courtof Suits. that the two cases might be consolidated and tried as one case.
When we wrote the opinion in the ejectment suit before mentioned, we inadvertently overlooked Section 1834, Revised Statutes 1919, which requires an independent action to be brought for improvements where the tenant claims title in possession of the land from another party who has the better title to the land. We have so ruled a number of times. [Tice v. Fleming, 173 Mo. 56; Henderson v. Langley, 76 Mo. 226.]
Judge GRAVES said in the case of State ex rel. v. Foard, 251 Mo. l.c. 56:
"`Sec. 2402. The plaintiff in his petition shall set forth the nature of his title, the length of his possession and the kind and value of the improvements made; and shall also aver therein that he entered into the possession of the land, believing that he had good title thereto, and that he made the improvements specified in the petition *Page 413 in good faith, under the belief that he had good title to the land, and shall be verified by his affidavit thereto annexed.'
"We have held that when the defendant in ejectment does not claim title from or through the plaintiff, then his action for improvements must be and is an independent action. That in such case the value of the improvements cannot be adjudicated in the ejectment suit proper, but must be adjudicated in an action under the statute. [Tice v. Fleming, 173 Mo. l.c. 56 et seq.; Bristol v. Thompson, 204 Mo. 366; Mann v. Doerr, 222 Mo. l.c. 19.]"
II. Of course a mere squatter with notice of the true owner's title without belief that he has a title cannot recover for any improvements placed by him upon the land, however valuable they may be, and under no circumstances can he recover moreSquatter. than what the improvements cost to make or place upon the premises, except as hereinafter mentioned, nor what they are reasonably worth as placed upon the premises.
The right to set off improvements made in the same suit for the possession of the land only exists where the defendant tenant claims the right to the possession of the land underAccrual and through the plaintiff suing for the possession ofof Right. the premises, as previously stated. By reading Section 1834, supra, it clearly appears that no right of action exists on behalf of a person for improvements made until a judgment or decree dispossessing him has been rendered. [State ex rel. v. Foard, 251 Mo. l.c. 56.]
III. There is no pretense that Mr. Sutton claims the land under Mr. Anderson, but he claims through Boone County. This view of the case, which is unquestionably the correct one, removes from the case the trial of the value of theDispossession improvements, until after the value of the rentsNecessary. and profits *Page 414 are adjudicated. So when this case reaches the trial court again, this opinion will completely eliminate from consideration both the character and value of the improvements put on the premises, and confine its inquiry solely to the value of the damages and rents and profits of the land while Mr. Sutton was in possession of it.
IV. My learned associate who wrote the opinion in the ejectment suit before mentioned, and his associates, inadvertently omitted to notice the statute previously mentioned providing that a setoff could not be entertained except where the tenantSetoff. was claiming under the party claiming under the better title. And as previously stated the defendant, Mr. Sutton, does not claim his right to the possession of the land from the plaintiff, Mr. Anderson, but his claim is founded exclusively upon a conveyance from Boone County, Missouri.
V. The evidence shows that the land in question is located in the Missouri River bottom, and that it was the universal custom to rent such land for crop rent, usually, if not exclusively, for one-half of the crop. This seems to be conceded by all ofRental the witnesses. Anderson therefore, in order to determineValue. the value of the rents and profits of the one-half of the land which Sutton received and should have paid to him, but which he wholly failed to do, undertook to show the kind and character of the land, together with its productivity — the kind and value of the crops grown on the land — to all of which Sutton objected, and the objection was sustained by the court. Some few of the questions asked relative to the rents and profits are here cited in order to show the ruling of the court.
"Q. What was corn selling for in 1916 — the general market value of corn?
"THE COURT: Objections sustained."
Plaintiff offered to show that corn was selling for one dollar per bushel during the year of 1916.
"THE COURT: Objections sustained." *Page 415
"Q. What was the nature of the season of 1916?
"THE COURT: Objections sustained.
"Q. What was the reasonable rental value of the land grown in corn, considering the price at which it was selling, the character of the crops grown during the year 1916?
"THE COURT: Objections sustained."
Plaintiff offered to show the reasonable value of the crop for 1916 was $35, to which objection was sustained.
"Q. Senator, what was the reasonable value of the land for corn during the year 1916?
"THE COURT: Objections sustained.
"Q. What was the reasonable value of the land during 1921, for corn, taking into consideration what was produced, the value, etc.?
"THE COURT: Objections sustained."
After showing that land in the river bottom was always rented on the shares, and that there was no cash rental value, the following questions were asked:
"Q. Did you observe the character of the crop grown on it? A. I noticed it some. That year I was going through the corn and would notice it some.
"Q. Now what is your opinion was half the value of the crop?
"THE COURT: Objections sustained. Senator, I have passed on that question now, and I would be obliged if you would observe the rule from now on. If I have erred the Supreme Court will set me right. They have passed on it, and now let one ruling in this case suffice.
"MR. IRWIN: Does the court rule I can't ask the number of bushels?
"THE COURT: I have ruled on it, I think, enough.
"Q. How much corn on an average will it produce a year?
"THE COURT: Objections sustained."
Witness John B. Estes, who had farmed a part of this very land, was asked the following:
"Q. How does the land produce.
"THE COURT: Objections sustained. *Page 416
"Q. On an average, for the last five years, what would be the average production of the land?
"THE COURT: Objections sustained."
Yet on cross-examination defendant was permitted to show that some of the land was sandy and would not produce.
VI. Counsel for appellant insist that the learned trial court erred in excluding the testimony above set forth, tending to show the value of one-half of the crops raised on the lands during the years that Sutton cultivated them. This is one of theRental cases where the law implies a contract on the part of theValue. tenant to pay rent. In treating of such cases Mr. Tiffany, vol. 1, page 1030, paragraph "b," uses this language: "The cases not infrequently contain references to an `implied contract' or an `implied covenant' to pay rent as distinct from one which is `express,' and it is desirable to obtain a clear conception, so far as possible, of what is meant by these expressions."
On page 1889-90 he says: "a. When no rent reserved. The plaintiff must, it appears, in the absence of a contract for a specific rent, give some evidence of the value of the use and occupation. In case there is no express agreement as to rent, thequantum of recovery is the reasonable value of the occupation which has actually been enjoyed, or, as it has been otherwise expressed, the rental value of the land, and this rule was applied when the parties thought they had agreed on the rent, but they had not done so. In case of an occupancy for part of the year only, the recovery is of the value of the occupation for that time, and not a pro tanto part of the yearly value.
"The value of the occupancy of a house built on the premises by the tenant during his occupancy cannot, it has been decided, be included in the recovery, and if a demise expressed to be of particular land is not proven the recovery can be only for that actually occupied. *Page 417
"The purpose for which the property is used is, it is said, to be considered, but if the premises are adapted for a particular use the tenant must, it has been decided, be held liable with reference to that use, though he utilizes them in such a way as to make them less valuable. The fact that the premises are particularly valuable to him, and that, if not occupied by him, they would have been vacant, has been regarded as immaterial. The rent of the premises in previous years may be considered, but not the selling value of the premises.
"The question seems not to have been discussed whether one who, under a demise of particular land, which fails, however, to name any rent, enters on and occupies a part only of such land, is liable for the reasonable value of the occupation of the whole land. Presumably he would be so liable, on the theory that his entry on part is to be regarded as constructively an entry on all.
"Interference by the landlord with the tenant's enjoyment, even if it does not amount to an eviction, may be considered in determining the value of the beneficial enjoyment, it has been decided."
The same distinguished author on pages 1017 and 1654 says that the rent may by agreement or custom be payable in part of the crops, etc., raised upon the premises; also that the rent may fluctuate by the price of wheat or with the amount of products which the premises may produce (page 1047).
The previous litigation referred to between the parties establishes the plaintiff's ownership of the land and his right to recover the rents and profits from the defendant while he was in possession and use of same, so the only remaining question presented for solution is the reasonable monthly or yearly value thereof. The evidence conclusively shows that the rental value thereof during said time was very valuable, but that it had no cash rental value, because such lands had never rented for cash rents; this, I presume, is on account of high water which so endangers the crops that no one is willing *Page 418 to pay cash rent, but that fact by no means excuses the defendant from paying reasonable value therefor, which, under the facts disclosed by this record, can be ascertained only by showing the character of the land, its fertility, the kind of crops that best grow thereon, the amount of such crops actually grown thereon each and every year defendant had possession, and what were the reasonable market values each year thereof, at the year when produced. The value of the land upon which the crops grew, it appears, should not be considered and this for obvious reasons.
Unquestionably the exclusion of the evidence referred to was erroneous.
VII. Counsel for appellant also complains of the action of the court in refusing instruction numbered 7 asked by them, and in modifying and giving it as modified. Under the viewInstruction. we have taken of the case at this time, Instruction 7 should have been given as asked and the court erred in modifying and giving it in its modified form.
VIII. The action of the trial court in giving Instruction D for respondent is also complained of as error. It may also be said of this instruction that it will not be necessary or proper to give it at the next trial, as it seems to be leveled principally at the question of improvements and of course the questionGood of good faith has nothing to do with the amount of rentsFaith. and profits the respondent is required to pay. He must pay the full value of the rents and profits whether he entered onto the premises in good faith or not. The question of good faith in entering onto the possession of the land, under the statute, only becomes material when assessing the value of the improvements, which can only be done when made in good faith, believing they belonged to him. [Dothage v. Stuart, 35 Mo. 251; Stump v. Hornback, 109 Mo. 272; Smith v. Mount, 149 Mo. App. 668; Eisberg v. Phillips, 197 Mo. App. 329.] *Page 419
IX. Counsel for appellant next complains of the action of the trial court in refusing to give instruction numbered 1 asked by him. It, in substance, told the jury that the respondent could not recover of the appellant on the question ofLimitations. improvements for any such that were made or placed on the premises by him prior to the institution of the case of Sutton v. Anderson. The instruction should clearly have been given; if appellant's rents are barred in five years, then respondent's demand for improvements should likewise be barred in the same time. Section 1317, Revised Statutes 1919, provides that "actions founded upon liability created by statute" are barred in five years. Besides, this question will not be in the next trial of Anderson v. Sutton for the rent, etc. Warvelle on Ejectment, pp. 543 and 601 says: "It is held in some cases, however, that the right to set off the value of improvements placed upon the land more than five years before the commencement of the action is barred by the Statute of Limitation. It is held that when the statute is relied upon by the parties, it must operate alike upon both."
X. Counsel for appellant next insist that Instruction C given by the court for respondent was error. It told the jury that they could not "assess the value of the rents andRental Value profits on the value of the improvements placedof Improvements. thereon (the land) in good faith by Sutton." This is clearly misleading and confusing to the jury, as the question of improvements had nothing whatever to do with the value of the rents and profits, besides it is contradictory to the modification made by the court to Instruction D given for respondent. Said instruction as asked told the jury that they could not allow the respondent any sum in this suit for improvements; the modification made by the court was "except that in determining the value of such annual rents and profits you may take into consideration the increased adaptability of said land, if any, for the purpose for which it was used by Sutton by reason *Page 420 of such improvements, and this notwithstanding the fact that said improvements were placed upon the land by Sutton." This modification made by the court of appellant's Instruction D is not only contradictory of Instruction C, but it also allowed the jury to charge the appellant for the full value of the improvements, and then again charge to the appellant for the benefits they might find if they had increased the productiveness of the land. This was clearly erroneous.
XI. It is next insisted that the court erred in refusing appellant's instruction numbered 3. That instruction in effect told the jury that the respondent could notValue of recover for the improvements more than they costImprovements: to make them. This instruction was properlyCost. refused. It might just as well be contended that the respondent could recover the actual cost of the improvements, though they did not add a dollar to the value of the premises. Suppose the improvements are made of cottonwood or willow materials, which, according to common knowledge, only last a "year and a day," and that they have wholly or practically disappeared from the premises at the time the value of the improvements are assessed, would it be just to charge the landowner with the cost of the improvements when they are not worth a dollar? I think not. And upon the other hand, suppose the improvements have been made of the very best material, such as oak, or first class pine, and that the cost of that material has risen in value from the time the improvements were made up to the time when the value of them is assessed; would it not be just to make the landowner pay what the improvements were reasonably worth at the time he takes them over? I think so. In other words, in my opinion, the value of the im-improvements ought to be assessed at what they are reasonably worth to the land at the time the landowner takes them over. *Page 421
XII. Appellant also complains of the action of the court in refusing instruction numbered 4 asked by him. This instruction reads:
"The court instructs the jury that the term rents and profits as used in these instructions means the actual value thereof as near as may be ascertained by the jury. In determiningMarket such value you will take into consideration the number ofValue. acres in cultivation each year, the quantity of corn or wheat grown, as well, also, as the price at which it was sold."
This instruction should have been given had it ended with the words "as the price at which it was reasonably worth on the farm" instead of "as the price at which it was sold." The appellant can only recover the reasonable market value of the corn, whatever that was at the time, and he can no more recover more than that price than he would be compelled to take less than that had respondent sold it for less than the market value. But as asked, the court properly refused the instruction.
XIII. Again it is insisted by counsel for appellant that the court erred in refusing instruction numbered 2 requested by him. It in effect told the jury that if they believed from the evidence that the crops received by the respondent from year to year from the land paid the cost and expensesImprovements: of the improvements he made upon the land forPaid for by Crops. such years, even though he had no notice of appellant's claim to the land, then he should not recover from the appellant any sum for the improvements for which he had been paid by said annual crop. In our opinion this instruction should have been given, for the reason that if respondent received pay for his annual improvements from the annual rents from appellant's lands, then he should not be permitted to recover for them a second time, notwithstanding the fact that appellant could not sue for and recover said rents on account of the Statute of Limitations. This is upon the theory that if the value of the annual crop received by *Page 422 respondent equaled or exceeded the value of the annual improvements made upon the premises, then the one paid and discharged the other, and consequently there was nothing remaining due the respondent for those annual improvements.
XIV. The only remaining point to be notified is how the value of the rent corn respondent received and failed to account for to appellant should be assessed. As previously stated the court should submit to the jury the question as to how manyValue of bushels of corn the respondent raised and gathered orRent Corn. could have raised and gathered on the premises, during the years not barred by the Statute of Limitations, and then have them to find from the evidence the reasonable market value thereof, on the premises, and return a verdict for appellant for the sum so found.
For the reasons stated the judgment is reversed and the cause remanded to the circuit court to be tried in conformity with the views herein expressed. Graves, C.J., and Walker, J., concur;David E. Blair, J., concurs in the result; White, J., dissents; Ragland and Atwood, JJ., not sitting.