Action in ejectment to recover possession of certain land in Boone County, with damages for withholding same. The case went to Audrain County after change of venue. Upon a jury trial there, Anderson recovered judgment for possession and was awarded damages in the sum of $20,000. The value of the monthly rents and profits was fixed at $350. Sutton has appealed.
We will not burden the opinion with a long recital of facts. Anderson's title was determined in Anderson v. Sutton,295 Mo. 195. The present suit in ejectment was a separate suit. Anderson appealed from two former judgments assessing damages and rents and profits. See cases by the same title in 301 Mo. 50 and275 S.W. 32.
Anderson's right to possession is conceded. Previous reversals have been due to erroneous instructions, covering the measure of damages, and errors in the admission and exclusion of testimony. It is not seriously questioned that, in the last trial, the court followed the rule as to measuring damages laid down in the opinions heretofore written. On the first appeal it was held that the rule is not inequitable which "awards the owner rents and profits according to the value of the land for the purpose for which it has been devoted by the occupant, who is not thereby required to pay rent on the improvements made by him, but the rental value of the land measured by the increased adaptation of same for the purpose for which it has been used, although such adaptation may have been brought about by the occupant's own labor or at his expense."
We there held that Anderson was entitled to damages based upon the rental value of the property as enhanced by the improvements put upon it by Sutton, in so far as such improvements constituted a mere increased adaptation of the land for farmingDamages. purposes. Appellant now assails that ruling as erroneous, inequitable and unjust and as inflicting such a great hardship and injustice upon the occupying claimant that our previous opinion should not be followed, even though it is a former opinion in the same case. Our ruling is said to be out of harmony with our own previous decisions in other cases and contrary to the great weight of authority generally.
Illustrations may readily be conceived where it would be inequitable and unjust to permit the true owner to recover damages against the occupying claimant, based upon the rental value of the property in its improved condition. For example, suppose that A enters upon a city lot, honestly claiming title thereto, and erects thereon a ten-story building occupying the entire lot. He collects rents therefrom for several years, when B is adjudged to be the owner. The building *Page 1063 erected by A constitutes most of the rental value of the lot. There is nothing unjust about limiting B's damages to the rental value of the lot, without considering the building, and requiring B to pay to A the reasonable value of the improvements erected upon the lot in good faith by A. The same situation would exist to a less extent where the occupying claimant erects valuable and permanent buildings upon land already adapted to and used for farming and the rule contended for would be just to all concerned.
The instant case, on the other hand, presents the best possible illustration of the injustice of the rule contended for when applied to all cases, regardless of circumstances. Here Sutton had been in possession of the land for fourteen or fifteen years before the last trial occurred. He had erected no substantial or costly buildings. The bulk of the improvements made by him consisted of clearing the land of brush and willows to adapt it to cultivation. Such clearing was largely done by his tenants as part consideration for their use of the land. He has wrongfully kept Anderson out of his rightful possession, at least since the suit to determine title resulted in a judgment in Anderson's favor. During every year, save one, Sutton, through his tenants, planted the land to crops, mostly corn, and thus has largely exhausted its fertility. The rental value, based upon its adaptability for raising crops, was large. Based upon the condition of the land when Sutton wrongfully, even if in good faith, entered upon the land, the rental value is negligible. In such case the reason for the rule contended for by appellant fails and the rule must be and is otherwise.
Appellant contends that Judge WALKER'S opinion (301 Mo. 50) is in conflict with Armor v. Frey, 253 Mo. 447, l.c. 479, and Byrne v. Byrne, 289 Mo. 109, l.c. 125. In the Armor case the rightful owner lost in the trial court and consequently his damages were not assessed. No instructions or declarations of law, stating the theory of the trial court upon the measure of damages, appear in the opinion. It was held that the plaintiffs were entitled to recover possession. In that connection ROY, C., said: "Plaintiffs are not entitled to their proportion of the full rental value, but only to such proportion of what the land would rent for without the improvements." Because there was no evidence in the case from which this court could make the calculation, the case was remanded to the circuit court. The rule there announced does not appear to have been necessary to a decision of the questions before the court. But assuming that it may have been a just rule upon the facts in that case, we do not deem the statement controlling upon the facts in the case at bar.
The Byrne case was ruled on the sole Missouri authority of the Armor case. The improvements, which were there taken out of consideration in calculating rental value, were farm buildings of permanent *Page 1064 character, walls, etc., and not mere improvements in adapting the land to the purposes of agriculture.
Judge WALKER'S opinion in 301 Mo. 50, is not in conflict either with the Armor case or with the Byrne case, when full consideration is given to the difference in the facts. Appellant cites 19 Corpus Juris, 1242, and 31 Corpus Juris, 339. There the general rule is stated as contended for by appellant. However, it should be noted that in 31 Corpus Juris, 339, it is said that "it has also been held, independently of statute, that the occupant may be charged rent on the land in its improved condition, where the improvements consist in preparing the land for the purpose for which it is used."
Appellant has cited a number of cases from other jurisdictions, with which, he contends, our former decisions conflict. We will not enter into a consideration of them for, if the cases hold as claimed and cannot be distinguished, such rulings would constitute no sufficient reason for departing from our former decision in this case. While authority can be found in the decisions of the courts of other states in harmony with our former opinion and decisions can be found in our own state in full harmony therewith, including the second appeal in this case (275 S.W. 32), we do not deem it necessary to discuss such cases. No sufficient reason appears why the rule of stare decisis should not be applied.
It is contended that, by appellant's instructions numbered 5 and 8, a double recovery of damages was authorized for part of the crop year 1925-26. Instruction 5 in substance told the jury that, if it found Sutton was in possession of theInstructions. land from March 6, 1915 (five years before summons was served in this case), to the present time (date of trial September 24, 1925), and rented the premises to tenants and received one-half of the crops grown on the land as rent and that such was the usual and customary rental of similarly situated lands in the vicinity, then the jury should ascertain and determine the reasonable value of one-half the crop received by Sutton in determining the value of the yearly rents and profits, etc. Instruction 8 authorized the jury to ascertain and declare the value of the monthly rents and profits from the date of the verdict in this case until Sutton should surrender possession of the land to Anderson.
There is no merit in the contention that these two instructions authorize a double recovery for part of the year 1925-26. Instruction 5 merely laid down a rule by which the value of yearly rents and profits could be measured. It did not authorize the assessment of such damages to any certain date. Instruction 8 covered the period, if any, elapsing between the trial date and date of delivery of possession by Sutton. At most it is a case of non-direction and not misdirection as to a proper separation of the two periods for which rental *Page 1065 values were assessable. Sutton might have requested, but did not request, an instruction on that subject. The court was not guilty of misdirecting the jury on the point.
It is contended that the trial court erred in not limiting the amount of Anderson's recovery of damages to the net value of the crops received by Sutton. Appellant has not pointed out any evidence in the record upon which the jury could base a finding making an allowance to Sutton for his labor andNet Value expenses, if any, in connection with acquiring hisof Crops. share of the crops. Appellant asked no instruction on the subject, even if there was any evidence upon which to base such an instruction. We find no merit in the contention.
In his brief appellant complains of injustice done him because of the setting aside of a former consolidation of this case with his own suit for recovery of the value of the improvements. We are unable to see how that question is before usConsolidation on the record brought here. Outside of ourof Suits. knowledge of the history of the litigation and our opinion in 275 S.W. 32, holding that consolidation was improper, there is nothing in the record now before us to show that such consolidation ever occurred or that such consolidation was later set aside. The motion for new trial contains not the slightest reference to either. Hence, the point is not properly before us.
We cannot pass the point, however, without suggesting that appellant erroneously seems to think that this court, in301 Mo. 50, l.c. 62, held that consolidation was proper and, in275 S.W. 32, held it to be improper, and that the court has thus changed front on the question. Views expressed in a separate concurring opinion of an individual judge are not the views of the court, unless it appears that the majority of the court concurred in such separately expressed views. The separate concurring opinion found in 301 Mo. at page 62 was the opinion of one judge only, was not concurred in by any other judge and was not in any sense the opinion of the court. This court never has held that consolidation was proper in this case. In fact the opinion in275 S.W. 32, holding that consolidation was improper, was concurred in by the very judge who made the suggestion concerning consolidation in 301 Mo. at page 62. Such concurrence was doubtless secured because Section 1834, Revised Statutes 1919, was overlooked by him when the suggestion of consolidation was made, as was pointed out by Judge WOODSON in 275 S.W. at page 33.
The final contention to be noticed is alleged improper argument to the jury by counsel for respondent. One instance was the statement that Sutton only paid $1.25 per acre for the land when he bought *Page 1066 it from the County Court of Boone County when there was no evidence in the record of the price paid. The courtArgument sustained objection to this line of argument.to Jury. Appellant's complaint seems to be that respondent's counsel kept right on and repeated the statement after the court had sustained the objection and had reprimanded him. No exception was saved to the sufficiency of the reprimand. No motion to discharge the jury was made. Assuming, without deciding, that the argument was improper, it would seems that if appellant thought at the time that the argument was prejudicial and disastrous to his case, he should have asked for the discharge of the jury and a continuance of the case at respondent's cost, rather than apparently to have acquiesced in the rulings of the court favorable to him and to have speculated upon the chances of a favorable verdict and, when the verdict turned out to be unsatisfactory, to ask this court to reverse the judgment on account of the argument.
We see nothing improper in the court's action in sustaining respondent's objection to the statement that a purchaser of land from the county court often loses the land and is left with the bag to hold. Anderson's title to the land and his right to possession were not disputed in this case. The argument served no proper office except to prejudice the jury improperly.
The argument of respondent's counsel that appellant could have surrendered the land in March, 1920, and avoided all liability for future rents and profits was obviously correct. Counsel qualified that remark by saying that appellant would not lose his improvements for which he had already brought suit. Of course, appellant could have yielded possession of the land in response to respondent's suit for possession, to which he was admittedly entitled at that time, and would have incurred no liability for rents and profits accruing after such surrender. Such surrender could not affect his pending suit to recover the reasonable value of improvements, for which he would have been entitled to recover, if he had not made such surrender.
We have considered all of the assignments of error made in appellant's brief and find them to be without substantial merit. This is the third trial of the suit for damages for withholding possession of the property of which Anderson is the conceded owner and to the possession of which he is admittedly entitled. The law of the case has been settled by our two prior decisions. No sufficient reason appears for departing from such former decisions. Under authority of those decisions appellant has no substantial basis for complaint against the judgment rendered at the last trial. Alleged procedural errors are found to be without substantial merit.
The judgment is affirmed. All concur, except Ragland andGantt, JJ., not sitting. *Page 1067