Brandon v. Stone

• Decision Date: 14 May 1942
• Docket Number: No. 6320.,6320.
• Citation: 162 S.W.2d 83
• Parties: W.L. BRANDON, RESPONDENT, v. J.W. STONE AND MYRTLE STONE, APPELLANTS.
• Court: Missouri Court of Appeals

162 S.W.2d 83

W.L. BRANDON, RESPONDENT, v. J.W. STONE AND MYRTLE STONE, APPELLANTS.

No. 6320.

Springfield Court of Appeals, Missouri.

May 14, 1942.

Appeal from the Circuit Court of Butler County. — HON. ROBERT I. COPE, Judge.

REVERSED AND REMANDED (with directions).

John W. Noble for appellants.

(1) With the title of property in litigation, as a matter of law, the improvements were not made in good faith. Brown v. Baldwin, 121 Mo. 106; Lee v. Bowman, 55 Mo. 400; Smith v. Mount, 149 Mo. App. 668, 129 S.W. 722; Richmond v. Ashcraft, 137 Mo. App. 191; 31 C.J. 321, secs. 29, 31, 32, 34. (2) Plaintiff is not entitled to an equitable lien against the lands for the improvements made. Davis Estate v. West Clayton Realty Co., 338 Mo. 69, 89 S.W. (2d) 22; Gray v. Clement, 296 Mo. 497, 246 S.W. 940; Sires v. Clark, 132 Mo. App. 537, 112 S.W. 526; Sec. 1548, R.S. Mo., 1939. (3) One who obtains property fraudulently and unfairly cannot seek relief in equity for improvements upon the property fraudulently obtained. Kadlowski v. Schwan, 327 Mo. 446, 44 S.W. (2d) 639; Kisling v. Yoder, 236 S.W. 860.

Tedrick & Tedrick and A.M. Spradling for respondent.

(1) If respondent believed he was the rightful owner of the real estate involved and if the improvements were made in good faith, then respondent is entitled to recover. Michalski v. Grace, 151 Mo. App. 631; Marlow v. Liter, 87 Mo. App. 584; Rains v. Moulder, 90 S.W. (2d) 81. (2) Respondent does not understand it to be the law that although he prevailed in the suit to set aside the trustee's sale and the suit in ejectment, the appeal therefrom was notice to him of appellants' interest and respondent could not become purchaser in good faith. 31 C.J. 326, sec. 35; Stephens v. Ballow, 25 Kan. 618; Samuels v. Simmons, 60 S.W. 937; Talbott v. Bell, 43 Am. Dec. 126; Madeira v. Hopkins, 12 B. Mon. Ky. 594; Zwietusch v. Watkins, 21 N.W. 821; Soper v. Foster, 75 S.W. (2d) 1080. (3) If appellants prevail they will get $10,300 more than they say the property is worth. This is an equity case, and when equity takes hold of a proposition it does complete justice, and the court could require respondent to pay appellants the reasonable market value of the land, togther with the rents and damages thereon, and let respondent keep the land. Casteel v. Pennington, 14 S.W. (2d) 753; Rzeppa v. Semore, 203 N.W. 62; Pritchard v. Williams, 96 S.E. 733.

BLAIR, P.J.

There is no dispute in this case but that plaintiff (respondent) was entitled to a judgment for the face of the note set forth in the first count of the trial petition and the court foreclosure of the deed of trust securing same, and the only amount in dispute in this appeal is the amount awarded respondent under the second count of the trial petition, with a further order or decree of the court that plaintiff was entitled to a lien on the premises described for such improvements. Defendants appealed and the amount really in controversy is the sum of $6500 and within our appellate jurisdiction. [Sleyster v. Eugene Donzelot & Son (Mo.), 20 S.W. (2d) 69; Sec. 2078, R.S. Mo. 1939.]

The real controversy grows out of the allowance to plaintiff in the judgment of the sum of $6500 for improvements made on the premises from the time of an ineffective foreclosure of the deed of trusts on the premises until defendants' right of possession was established by the Supreme Court of Missouri in Stone et al. v. Hammons et al., 146 S.W. (2d) 606. It was held by the Supreme Court in that case that respondent chilled the bidding at the sale under the attempted foreclosure of the deed of trust in accordance with the terms of the said deed of trust, and that said foreclosure should be set aside and the trustee's deed to plaintiff was cancelled and said deed of trust reinstated.

In the meantime, certain improvements on the premises, alleged by the respondent to have been in the sum of $15,000, were made by said respondent. The present action was to foreclose said reinstated deed of trust and to have the value of the improvements made declared a lien on the premises. The plaintiff below was decreed foreclosure of said deed of trust and allowed by the trial court the sum of $6500 for his improvements on the premises and said $6500 was decreed to be a lien on said premises and defendants below have appealed to this court from that judgment and the propriety of that allowance is really the sole question before us. While in this court four assignments of error are made to-wit:

"(1) Because as a matter of law the improvements could not have been made in good faith.

"(2) Because under the pleadings, the law and the evidence, the plaintiff was not entitled to the equitable relief granted by the court.

"(3) Because upon the law and the evidence the judgment of the court should have been for the defendants.

"(4) Because the amount of the rents and profits found by the court for defendants is inadequate."

Really only two points are here involved, to-wit, the right of the circuit court to make respondent any allowance at all, and decree it a lien, together with the adequacy of the finding of the circuit court as to rents and profits to which appellants were entitled while respondent wrongfully held possession of said premises under such ineffective trustee's deed.

The first question before us is the right of respondent to have a lien for improvements under the circumstances appearing in this case.

Plaintiff alleged in his trial petition that he had made such improvements after the sale was had under his deed of trust and after he had a judgment of the circuit court of Mississippi County holding appellants to be trespassers on said land, and adjudging respondent to be the owner thereof, and he had made such improvements in good faith in reliance thereon and upon advice of his attorneys that there was nothing in appellants' claim. As we understand the evidence, appellants had taken an appeal to the Supreme Court before the improvements were made. The trial court found as follows:

"The court further finds from the evidence that on the 2nd day of November, 1938, the above described property was sold under foreclosure of said deed of trust, and that plaintiff purchased said property at said foreclosure sale for the sum of $2,800, and was executed a deed therefor by the trustee; that a motion was filed to set aside said deed and cancel same, which motion was overruled by the Court and an appeal was taken to the Supreme Court; that on the 10th day of December, 1940, the Supreme Court of Missouri rendered a decision reversing the judgment of the trial court and finding that the sale was void, and re-instating the deed of trust heretofore described on the grounds that certain statements were made at time of said foreclosure sale which froze the bidding, which mandate was entered of record and offered as evidence in this cause. Therefore, the Court finds that the plaintiff is entitled and is granted the right to foreclose, and that plaintiff is entitled to a judgment against the defendants, and each of them, or either of them, and the right to sell the property for the purpose of satisfying said note and deed of trust after paying the costs and expense of said proceeding.

"The court also finds from the evidence that after the foreclosure sale of said property, to-wit: on the 2nd day of November, 1938, that an ejectment suit was instituted by the plaintiff against the defendants, and that on the 20th day of February, 1939, being the regular February Term of the Circuit Court of Mississippi County, Missouri, said cause was submitted to the court, and the Court found the issues for the plaintiff, finding that the defendants, J.W. Stone and Myrtle Stone, were guilty of trespass and ejectment, and that the plaintiff, W.L. Brandon, was entitled to the possession of the property and ordered and directed that the possession thereof be delivered to this plaintiff, and that plaintiff went into possession of said property on March 1, 1939, and after taking possession of said property, the Court finds from the evidence that the defendants sold to the plaintiffs a Delco Light Plant which was used for the purpose of lighting the buildings and premises, and after taking possession of the property, and prior to the rendition of the judgment by the Supreme Court, the Court finds from the evidence that the plaintiff expended large sums of money improving said property, which the testimony shows was around $15,000; and the Court finds that this sum was spent in good faith, under the evidence; that the plaintiff believed he was the owner; that he had a deed from the trustee; that he had received a judgment from the Circuit Court of Mississippi County, Missouri; and that defendants had sold to him the personal property, to-wit, the Delco Light Plant, and believing this expended the said amount; and further that no claim or notice from either of the defendants, except the appeal, was given the plaintiff. The Court finds that the value of the property due to these improvements has been increased in the sum of $6500, and that same being paid for by the plaintiff believing that he was the owner, the Court finds that he is entitled to a lien upon said property in the sum of $6500 for said improvements, being the amount the property has been increased by reason of same, subject to the note and deed of trust and costs, and that unless the amount of balance due on the note and deed of trust, and the amount due plaintiff for the improvements, to-wit: $6500, is fully paid, that the plaintiff is entitled to and is hereby authorized and given the right to proceed to sell said property under special execution after thirty days from date of this judgment. The above thirty days being given to defendants to redeem same if they so desire."

Upon the cross-bill filed by appellants, the trial court found as follows:

"The Court further finds upon defendants' cross-bill that the defendants are the...