Spitts, Appellant, vs. Wells & Wells, Respondents, 18 Mo. 468

Scott, Judge, delivered the opinion of the court. 1. The main point in this case is, whether the plaintiff is entitled, under the circumstances, to maintain an action to recover the value of improvements made by him upon the land before there was a partition made among the co-tenants. The proceeding for a partition of the land, it seems, was instituted by himself. The statutory mode of partition, found in our revised laws, has never been supposed to divest courts of chancery of their jurisdiction in suits for partition.

Though law and equity are now blended, yet the cases in which chancery formerly had jurisdiction are still cognizable in our courts, according to the mode of procedure now in use. As the plaintiff instituted the suit for partition, now that it has been made and acquiesced in, it is not easy to see the ground on which he seeks to recover compensation for improvements made by him before partition was made among the co-tenants. The delay in asserting the claim is at least some argument against its justice.

But we look upon this proceeding as designed to reform the partition that has been already made pursuant to law. If the plaintiff had any claim growing out of improvements made by him on the joint estate, it should have been asserted in the partition suit. If the partition was unequal or unjust, it should have been corrected when the commissioners made their report. The portion of the land improved by the plaintiff, should have been assigned to him, if practicable and consistent with the rights of the other parties. If this could not be done, compensation might have been made in some other way.

The case of Louvell et al. v. Menard, 1 Gilman, 39, is not in point, for the plaintiff. There the claim for improvements was interposed before the money arising from the sale of the land, which was sought to be divided, was distributed among the co-tenants. That was the proper time. So the time here should have been before the report of the commissioners was confirmed.

The plaintiff having instituted the suit for partition — having made no claim for improvements — having made no objections to the report of the commissioners, cannot now assert a right, which, if it ever had any existence, must be considered as barred by law. 2. There was no error in the court in refusing to suffer evidence to go to the jury showing that Pipkin, the guardian of the defendants, had taken possession of the land claimed by the plaintiff. It appears from the record, that this evidence was offered after the verdict. Surely it could not then be received.

But the evidence uTas improper, whenever offered, for the defendants could not be made liable for the unauthorized act of their guardian. If he ejected the plaintiff, the suit should have been brought against him. Indeed, the verdict of the jury found, substantially, that the plaintiff had not been disturbed in his possession. It was an informal one, it is true, but it should have been amended by the jury before it was recorded. We do not see how the plaintiff was prejudiced by striking out the portion of the verdict relating to the possession of the land still being in the plaintiff.

He had given no evidence in relation to his ejectment, on the trial, and the court very properly rejected that offered after the verdict. The record may be defective, but the plaintiff surely has sustained no injury by reason of its imperfection. The instructions of the court put the matter of the board, alleged to have been furnished to the defendants by the plaintiff, in a proper view before the jury, according to the evidence. We see no reason, whatever, for suing the defendants jointly for their board. Judge Hyland concurring, the judgment will be affirmed; Judge Gamble not sitting.