Russell v. Defrance

Wagner, Judge, delivered the opinion of the court. The two principal objections raised by the plaintiff in error in this court are that there is a misjoinder of parties on the record, and that the judgment given by the court below was unauthorized by the statute. Admitting the fact to be that there is a defect of parties as plaintiffs in the petition, theMefendant is in no position to avail himself of the error in this court. The matter complained of is patent on the face of the petition; and as he did not resort to his demurrer in the Circuit Court, he must bé considered as having waived all objections on that account. But we are not satisfied that there is any error in the joinder of parties plaintiff. It appears that all the parties who joined in the petition for an injunction as plaintiffs were not joined as parties defendants in the ejectment suit brought by the defendant ;in the injunction for the recovery of the premises. And [512] the plaintiffs in this suit aver that at the time of the recovery of judgment in the action of ejectment, they were by themselves and their tenants in actual possession of the premises, and still continue in such possession. There is no denial of this averment, and it must, therefore, be taken as true. The record clearly shows that the plaintiffs held and were possessed of the land as tenants in common, and the possession of one was the possession of all. The defendant, by bringing his action of ejectment against a part, and neglecting or refusing to proceed against the others, could not deprive them of their just and legitimate rights. A contrary doctrine would defeat the ends of justice, and destroy the equitable objects contemplated by the law. The purpose of the act was to remunerate innocent persons, who, believing they had a good title, had in good faith made valuable improvements on real estate, when they were evicted by a paramount title — R. C. 1855, § 20, p. 694. The petition sets out a case of persuasive equity, and we wholly fail to see any force in the objection that the enforcement of the remedy here sought is an -attempt on the part of the laws and courts of this State to interfere with the disposal of the soil on the part of the general government. The party under whom the plaintiffs derived their title had paid his money for the land, and received a certificate from the Receiver of the Land Office; under and by virtue of that certificate they had cultivated, improved and been in possession of the land for twenty years, when the defendant entered it and received his patent. There is no effort to interfere with the disposal or sale of the land ; but the plaintiffs do insist with justice and reason that they shall be compensated for their improvements, and the defendant must be regarded as having constructive no-. tice of the facts. The jury found in their verdict the land to be worth sixteen dollars per acre with the improvements, and eight dollars per acre without the improvements, and the court, by a [513] calculation of the number of acres by the difference in value, we suppose, rendered judgment for the plaintiffs for the sum of fifteen hundred dollars. The criterion by which the jury estimated the value was, we think, correct, but it would have been better to have had the gross amount fixed by the verdict. But as no injury appears to have been done, we will not remand the cause for a new trial on that account. The judgment, however, will have to be reversed, because it is not in conformity with the the statute. The court gave an absolute and unconditional judgment, and ordered execution to issue to enforce the payment of the amount. The statute provides 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 from all claim of such occupying claimant; and if the value of the land, aside from the improvements, exceed the value of the improvement, the court may in its discretion order either that the plaintiff shall pay for the improvements before he shall be allowed to take possession of the land, or that the land shall be divided between the occupying claimant and the plaintiff, according to their respective rights. In our opinion, a wise discretion demands in this case that an order should be made requiring the plaintiff in the action of ejectment, and the defendant in the court below in this suit, to pay for the improvements before he should be allowed to take possession of the land. The judgment of the Circuit Court will therefore be reversed, and judgment will be rendered in this court according to the foregoing views, and the temporary injunction granted will continue until the money is paid. The other judges concur.