Gallenkamp v. Westmeyer

• Decision Date: 27 February 1906
• Citation: 116 Mo. App. 680,93 S.W. 816
• Parties: GALLENKAMP v. WESTMEYER et al.
• Court: Missouri Court of Appeals

93 S.W. 816

116 Mo. App. 680

GALLENKAMP v. WESTMEYER et al.

St. Louis Court of Appeals. Missouri.

February 27, 1906.

1. EJECTMENT—RECOVERY FOR IMPROVEMENTS.

Under the statute giving compensation to one ousted from possession of land for betterments made in the belief that the title he held was good, an occupant of land, defeated in ejectment against him, may recover the value of the improvements made on the land by himself and his predecessors in the defective title, where the improvements were made in the belief that the title was good.

2. SAME.

Under the statute allowing compensation to one ousted from possession of land for betterments made thereon, any occupant making improvements without actual knowledge that his title was imperfect, unless his ignorance was due to inexcusable neglect, is entitled to recover therefor.

3. SAME—DEFECTIVE TITLE—GOOD FAITH OF OCCUPANT.

In partition, defendant minors were summoned by reading the summons to them without delivery to them either a copy thereof or the petition. Held, that the mode of service, though fatal to the jurisdiction of the court, did not deprive the purchaser at the sale, or one claiming under him, from recovering the improvements made on the land under the belief that a good title was acquired at the sale.

4. SAME.

Where a purchaser and his predecessors in title claimed land in fee and made improvements thereon, in the belief that the fee was owned, the fact that they held only an estate for the life of another did not deprive the purchaser of the right to recover for the improvements on being ousted from possession.

5. SAME—JUDGMENT.

A defendant, in proceedings to recover for improvements made by an occupant against whom ejectment has been successfully maintained, must elect to accept the value of the land without the improvements and relinquish his interest to plaintiff, in order to justify a judgment requiring plaintiff to pay the value of the land on the ground that it is worth less than the improvements, as authorized by Rev. St. 1899, § 3076.

6. SAME.

A judgment in proceedings to recover for improvements made by an occupant, defeated in ejectment brought by defendant, which enjoins defendant from disturbing plaintiff's possession until he pays for the improvements, and which directs that if defendant would make a warranty before a specified date, plaintiff should pay for defendant's interest in the land, is proper, and protects defendant's rights.

Appeal from Circuit Court, Franklin County; John W. McElhinney, Judge.

Action by Edward W. Gallenkamp against Henry Westmeyer and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Jas. Booth and J. C. Kiskaddon, for appellants. John W. Booth and C. F. Gallenkamp, for respondent.

GOODE, J.

Respondent, having been defeated in an action in ejectment instituted by the appellants, brought the present action to recover the value of the improvements made by him and his grantors on the premises. The judgment in ejectment went in favor of appellants for an undivided 21/30 interest in the premises. In his petitition respondent traces his title from Bernard Westmeyer, a common source of title. Said Westmeyer died in 1854, leaving a widow, Henrietta Westmeyer, and seven children, three of whom are the appellants. From the statements of the petition it appears that the broken link in respondent's chain of title was the judgment in a partition suit instituted by the widow, Henrietta Westmeyer, against the said children, in 1856. In that suit the court having jurisdiction of it ordered a sale of all lands, including the premises in controversey, whereof Bernard Westmeyer had died seised, and a division of the proceeds of the sale among said children and widow of Westmeyer, according to their respective interests. Pursuant to that judgment a judicial sale occurred, at which Christian Kruse purchased the lot in controversy, and respondent acquired title to it by mesne conveyances from Kruse and his subsequent grantees. Respondent's title failed as to a 21/30 interest in the land, because Kruse, the purchaser at the partition sale, instead of acquiring the title in fee, acquired only a life estate in the land for the life of Henrietta Westmeyer, widow of Bernard Westmeyer, deceased, and this was the extent of the estate acquired by respondent. All the deeds under which respondent claimed title, except two deeds made pursuant to judicial sales, purported to convey a fee-simple title to the lot, and those official conveyances were in the usual form and did not on their faces purport to convey a less estate than the fee. One of them was a deed made pursuant to an administration sale in payment of debts. It undertook to convey the entire estate of the decedent in the land, and said decedent held a deed purporting to convey to him the fee. The other deed under a judicial sale was the one following the partition suit. On its face it conveyed the entire interest of the heirs of Bernard Westmeyer. The petition further alleges that respondent, and the successive grantors under whom he claims title, had made extensive and valuable improvements on the land, in good faith and without notice of the superior title on which the appellants recovered judgment in ejectment. Each of the improvements is described. They consisted of filling the lot to raise it to the grade of the street in front of it and building a residence, carriage house, and other structures. The answer admitted the allegations of the petition regarding the respondent's chain of title, and that judgment was recovered against respondent by appellants on a superior title. It averred that all the improvements on the lot were made by respondent's predecessors in title, and while they held no estate in the lot except for the life of Henrietta Westmeyer; that the effect of all the mesne conveyances from the partition sale, including the deed to respondent, was to pass only said life estate, and not the fee; that after the termination of the life estate by the death of said Henrietta the action in ejectment was instituted by appellants and resulted in a judgment in their favor; that after the termination of the life estate respondent and appellants became tenants in common of the lot he owning in fee 9/30, and appellants 21/30: that no improvements were made by respondent or his predecessors in good faith, but all were made with knowledge that appellants had some interest in the lot. A replication was filed, which admitted that the several conveyances subsequent to the partition sale conveyed only the life estate of Henrietta Westmeyer, but averred that the judgment in partition purported to be a division of the fee-simple estate, and each of the subsequent conveyances purported to be a conveyance of said fee-simple estate; that respondent, and each of his predecessors, had made improvements on the land without notice of the fact that the state of the title was such that the conveyances had only operated to legally pass title for the life of said Henrietta; that the improvements were made, as alleged in the petition, in good faith and without notice of any title in the appellants. The replication denied that all the improvements were made by respondent's predecessors, and averred that all save certain enumerated ones were made by respondent himself. The relief prayed was that respondent recover of appellants the value of the improvements, to be ascertained according to the statutes, and that an injunction be awarded to restrain appellants from taking possession of the premises...