Eisberg v. Phillips

• Decision Date: 08 May 1917
• Docket Number: No. 14578.,14578.
• Citation: 197 Mo. App. 329,194 S.W. 1075
• Parties: EISBERG et al. v. PHILLIPS et al.
• Court: Missouri Court of Appeals

194 S.W. 1075

197 Mo. App. 329

EISBERG et al. v. PHILLIPS et al.

No. 14578.

St. Louis Court of Appeals. Missouri.

May 8, 1917.

Rehearing Denied May 28, 1917.

Appeal from Circuit Court, Franklin County; R. A. Bruer, Judge.

Action by Lizzie Eisberg and others against F. B. Phillips and others. From judgment for plaintiffs, defendants appeal. Affirmed.

Jas. Booth, of Pacific, J. A. Wason and Hamlin, Collins & Hamlin, of Springfield, for appellants. Jesse H. Schaper and J. W. Booth, both of Washington, Mo., for respondents.

BECKER, J.

Respondents, having been defeated in an action of ejectment instituted by appellants, brought this action in the same court, under section 2401, Revised Statutes of Missouri 1909, for recovery of the value of improvements made by them in good faith on such lands, prior to their having had notice of the superior title. The court, on a hearing without the intervention of a jury, rendered a judgment in favor of the plaintiffs, respondents here, against the defendants, appellants here, in the sum of $1,700, from which judgment defendants appeal.

The common source of title was a deed of conveyance to the property in question, dated November 26, 1859, by John M. Caldwell and wife to Lucinda Childers and her heirs of her body and assigns forever. Said Lucinda Childers died in the year 1911, leaving, as heirs of her body and heirs at law, the appellants herein. The respondents trace their title to the lands, upon which the improvements sued for were made, through fees and by descent as follows:

A. Deed of Lucinda F. Childers and her husband to Henry E. Lawson, dated November 18, 1866, and purporting to convey said land in fee simple to said Lawson.

B. Deed of said Lawson and wife to Ambrose Scott, dated March 13, 1869, purporting to convey said land in fee simple to said Scott.

C. Deed from said Scott and wife to George Eisberg, dated September 24, 1888, and purporting to convey said land in fee.

Each of the above-mentioned deeds were duly and promptly recorded. Said George Eisberg died intestate September 2, 1909, leaving respondent Lizzie Eisberg his widow and the other respondents herein surviving him as his heirs.

In a proper action between all the parties in interest the circuit court of Franklin county, in a decree rendered August 14, 1913, construed the deed of conveyance, supra, from John W. Caldwell and wife to Lucinda Childers as having vested in said Lucinda Childers only a life estate with remainder therein to the heirs of her body or assigns, and decreed the fee-simple title to said lands to be in the children and heirs of law of said Lucinda Childers, who were plaintiffs in that suit, respondents here. Thereafter, in an action of ejectment between the same parties, judgment for the recovery of the possession of said land was rendered in favor of the appellants and against respondents, which action in turn was followed by this suit for the value of the improvements made on such land.

It is not necessary to set forth a description of the land involved, nor to set forth the pleadings nor facts proven thereunder, regarding the various improvements and their value, inasmuch as the assignment of error raised by appellants does not pertain thereto. The only assignment of error urged by appellants is that the trial court erred in refusing, at the close of all the evidence, to render judgment in favor of the defendants.

1. The sole question in this cause is whether or not the facts therein bring it within the provisions of section 2401, Revised Statutes of Missouri 1909, which provides:

"When defendant may recover compensation for improvements. — If a judgment or decree of dispossession shall be given in an action for the recovery of possession of premises, or in any real action in favor of a person having a better title thereto, against a person in the possession, held by himself or by his tenant, of any lands, tenements or hereditaments, such person may recover, in a court of competent jurisdiction, compensation for all improvements made by him in good faith on such lands, tenements or hereditaments, prior to his having had notice of such adverse title."

Appellants contend that the right to recovery for the improvements under this section can be invoked only in favor of one who was without notice of the adverse title, and that where the deed of conveyance, as in the present case, through which title is claimed, has been properly recorded, such recording imparts notice to all the world of its contents, and that a misconstruction of such deed or an erroneous belief that such deed conveys an estate different from that which it in point of fact does is no excuse in law, and will not enable the party in error, or so misconstruing it, to invoke the protection of section 2401. Appellants, to sustain this contention, have cited the case of Missouri Central Building & Loan Association v. Eveler, 237 Mo. 679, 141 S. W. 877, Ann. Cas. 1913A, 486. An examination of this case shows clearly that it is not in point. This was a suit in equity. Plaintiff had loaned one Herman Eveler several sums of money upon said Eveler's representations of having a fee-simple title in certain property in which, as a matter of fact, said Eveler only had a life estate. As security for the said sums so loaned, the plaintiff had accepted a deed of trust upon the said property. Eveler used the money borrowed in erecting a house upon the property. Upon his death the remainderman refused to pay plaintiff the balance due under the deed of trust, which had been made by the life tenant, Eveler. Plaintiff thereupon filed its bill in equity asking the court to adjudge that the frame building on the land in question be subjected to the payment of plaintiff's debt. The trial court sustained demurrers to the petition on the ground that the petition did not state facts sufficient to constitute a cause of action. On appeal to the Supreme Court the judgment was affirmed. The court held that the mortgagor, under such circumstances, could not have a lien on the lots or the house for the amount of the loan or any part thereof after the death of the remainderman, because the life tenant has no power to charge the corpus of the estate with improvements. This case, as we have shown, was not brought by one who had made improvements upon land in good faith, believing himself to have a good title to such land, nor was it an action brought under section 2401. It has no bearing on the instant case whatever. Nor is the case of Schorr v. Carter, 120 Mo. 409, 25 S. W. 538, cited by appellants, in point. This was a suit in ejectment, and the court properly held that in such a suit defendants were not entitled to a reduction of damages for outlays expended in the preservation of the property, and that all evidence with respect thereto had been properly excluded by the trial court.

We have made a careful examination of the authorities...