Hill v. Tissier

• Decision Date: 04 March 1884
• Citation: 15 Mo.App. 299
• Parties: BRITTON A. HILL, Respondent, v. A. N. F. TISSIER, ET AL., Appellants.
• Court: Missouri Court of Appeals

15 Mo.App. 299

BRITTON A. HILL, Respondent,

v.A. N. F. TISSIER, ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Mar. 4, 1884.

APPEAL from the St. Louis Circuit Court, LUBKE, J.

Affirmed.

CHARLES E. PEARCE for the appellants: “Good faith” and “notice” can not co-exist.-- Lee v. Bowman, 55 Mo. 400. The “notice” contemplated by the statute is not written notice, or direct and positive information, but anything calculated to put a man of ordinary prudence on the alert. And if that clue is furnished, he is chargeable with knowledge of all those facts to which that clue, if properly followed, would have led.-- Lee v. Bowman, 55 Mo. 400; 2 Sudgen on Vendors, 762, note and cases; 1 Story Eq., sects. 395, 397, 399, 400. The record of a deed is notice.--Story Eq., sect. 403; 3 Washb. on Real Prop. 319 et seq.; Bales v. Perry, 51 Mo. 453; Digman v. McCullum, 47 Mo. 372.

H. D. WOOD for the respondent: Constructive notice which the law implies from the record of a deed, is not sufficient to preclude an occupant from recovering for improvements.--Sedg. & Waite, Trial of Titles to Land, par. 696; Dothage v. Stuart, 35 Mo. 251; Russell v. DeFrance, 39 Mo. 506; Whitney v. Richardson, 31 Vt. 300; Green v. Dixon, 9 Wis. 532; Hatcher v. Briggs, 6 Ore. 31. A person in possession who believes and has good reason to believe that his title is good, is acting in good faith so as to entitle him to claim the benefit of his improvements, and he will be presumed to be acting in good faith until the contrary appears.-- Stark v. Starr, 1 Sawy. 15; Sedg. & Waite, Trial of Titles to Laud, par. 694; Kent J. in Smith v. Lorillard, 10 Johns. (N. Y.) 356. The question whether the occupant erected the improvements in good faith, believing he had title, is one of fact for the jury or the court sitting as a jury.--Sedg. & Waite, Trial of Titles to Land, par. 694; Powell v. Davis, 19 Texas, 380.

BAKEWELL, J., delivered the opinion of the court.

The statute provides (Rev. Stats., sects., 2259 et seq.), that “if a judgment 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. The plaintiff, in his petition shall set forth the nature of his title, the length of his possession, and the kind and value of the improvements made, and shall also aver therein that he entered into the possession of the land, believing that he had good title thereto, and that he made the improvements specified in the petition in good faith, under the belief that he had good title to the land, and shall be verified by his affidavit thereto annexed.” It is then provided that an injunction may issue to stay execution until the petition for compensation shall have been heard; and that, if upon trial the finding is for the occupying claimant, and his improvements exceed in value 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 money is paid, the owner of the land shall execute to the occupying claimant a conveyance with general warranty. There is a provision for a different order, where the improvements do not exceed in value the value of the land.

Aloysius N. F. Tissier recovered in ejectment against Hill a lot of fifty feet on Sixth Street, near Poplar, in St. Louis, on which were erected certain buildings used for a foundry. This action was begun by Hill, under the above statute, against Tissier and the sheriff, on the theory that the value of the improvements erected in good faith by Hill, exceeds the value of the land without them. The cause was tried without a jury. The court found for plaintiff, and that the improvements are worth more than the land, and the land worth $5,000, which sum plaintiff was directed to deposit in court to use of defendant Tissier, together with costs, within ten days, failing in which the petition was to be dismissed, and the temporary injunction that had been granted, dissolved, and defendant discharged of all claim of plaintiff. Plaintiff made the deposit according to the terms of the order, and there was a final decree making the injunction perpetual and directing defendant Tissier to make plaintiff a deed for the lot in question. From this judgment Tissier appeals.

It appears from the testimony, that the lot in question, which is in the Chouteau mill tract, was assigned to Henry Chouteau in partition of the estate of Auguste Chouteau, and the title was derived by sundry mesne conveyances, all duly recorded, to Joseph F. Tissier. Tissier died in 1856, in St. Louis, leaving defendant Aloysius N. F. Tissier as his only child and heir. There was administration on the estate of Joseph F. Tissier, which was finally settled in 1876, and the balance in the administrator's hands then paid Aloysius, who had attained his majority. Aloysius N. F. Tissier resides in France; but has an agent here who attends to his affairs, and who put the property in question into the hands of the real estate agents for sale about 1878. These agents put up signs upon the fence surrounding the lot, stating that it was for sale, and referring would-be purchasers to them in the usual way. The lot was below the grade, and its value, without the improvements put upon it by Hill, was variously estimated at from $60 to $125 a foot.

One Joseph Tessier died in 1873, leaving a will, by which he devised all his property to his widow Mary. This will was duly proved in the proper office in St. Louis, where Tessier had resided and where he died. There was no administration upon his estate. The lot, at the time of the transaction in question, was assessed to Joseph F. Tessier, and had been so marked on the plat-books in the assessor's office in St. Louis through a series of plat-books running back fifteen years. The testimony is, that these plat-books are made out once every three years, and that the assessor is required by law to indicate on the plat of the lot any recorded conveyance changing the title; and that this is done in red ink.

In April, 1880, plaintiff Hill was one of the directors and the treasurer of the Polytechnic Iron Works. The company desired to get a suitable lot on which to erect a foundry, and attention was directed to the lot in question, which seemed suitable. At this time, Mr. Hill was in very bad health, confined to bed five days out of seven, and generally unfit to attend to business. Mr. Hill is a lawyer, thoroughly versed in the law of real estate, and in active practice in St. Louis from 1839 to a period shortly before the date of these transactions, when he was obliged by illhealth to restrict his practice. He had associated with him a young lawyer named Wolff. Wolff had had considerable experience in real estate matters,...