Kelly v. Gebhart

• Decision Date: 10 February 1904
• Citation: 79 S.W. 427,180 Mo. 588
• Parties: KELLY v. GEBHART et al.
• Court: Missouri Supreme Court

79 S.W. 427

180 Mo. 588

KELLY v. GEBHART et al.

Supreme Court of Missouri, Division No. 1.

February 10, 1904.

EJECTMENT — PROCEEDINGS FOR IMPROVEMENTS—OFFER TO RELINQUISH LAND—ERRONEOUS JUDGMENT—EXCESSIVE RELIEF.

1. In a proceeding under Rev. St. 1899, § 3072, by one who has made improvements in good faith on land, to which defendant had been adjudged to have a better title, for the value of the improvements, defendant's offer, by answer, provided for by section 3075, to relinquish the land on payment of its value, necessary as notice that the value of the land will be in issue on the trial, will be held waived; the value of the land and improvements being fixed at the trial by agreement of the parties, and assessed by the court according thereto.

2. Though plaintiff, in his petition, goes beyond the strict limits of Rev. St. 1899, § 3072, only authorizing recovery for improvements made in good faith on land to which defendant has been adjudged to have better title, and also asks to be subrogated to the rights of a mortgagee, he having paid off the mortgage, the judgment granting the relief is merely erroneous, and not void; the court having jurisdiction of the parties and the subject.

Appeal from Circuit Court, Phelps County; L. B. Woodside, Judge.

Suit by William C. Kelly against Ludwig Gebhart. From the decree, defendant appealed. On defendant's subsequent death, his children and heirs at law were duly substituted as appellants. Affirmed.

Thos. M. & Cyrus H. Jones, for appellants. Botsford, Deatherage & Young, for respondent.

VALLIANT, J.

The original defendant in this suit was Ludwig Gebhart, who has died since the appeal was taken; and the present defendants, who are his children and heirs at law, have been admitted as parties in his stead. The suit was begun as an action in ejectment for the possession of 80 acres of land, but by the answer it was converted into a suit in equity. The averments in the answer were to the effect that in 1889 the defendant Gebhart, by his attorney, Kelly, the plaintiff in this suit, brought suit against one Corse to recover the value of certain improvements that he (Gebhart) had placed on the land in question; that Corse answered in that suit by general denial only, and, the cause coming on for trial, the court found the value of the improvements sued for to be $1,600, and the value of the land independent of the improvements to be $200, rendered judgment against Gebhart for $200, and decreed that execution issue to sell the land to satisfy that judgment; that execution did accordingly issue, and the land was sold thereunder by the sheriff to Kelly, the plaintiff in the case at bar, to whom the sheriff delivered a deed. Then the answer avers that that judgment was null and void, and the sale thereunder was void, and prays that the deed be canceled, etc. Reply, general denial.

On the trial the plaintiff, Kelly, introduced the following evidence: (1) A judgment of the circuit court, dated February, 1887, in favor of one A. Corse against Ludwig Gebhart, for the possession of this 80 acres, and $10 damages. (2) A deed of trust dated August, 1887, from Ludwig Gebhart conveying this land to A. S. Long, trustee, to secure a note for $100 to Kelly and J. B. Harrison, and a note for $100 to Kelly, both made by Gebhart, both due August 9, 1888. (3) A judgment of the circuit court, dated August 8, 1890, in the words and figures following: "Ludwig Gebhart v. A. Corse. This cause coming on to be heard, the parties plaintiff and defendant appear and announce ready for trial; and by agreement of parties the issues are submitted to the court, and by agreement the court finds that the defendant is entitled to the lands described in plaintiff's petition, as follows: South half of the southeast quarter, section thirty-four (34), township thirty-eight (38), range seven (7) west, containing 80 acres; that the plaintiff is and has been in the possession of said land, claiming title thereto, since the ____ day of December, 1880; that the value of said lands, without improvements made by plaintiff, is $200; that the value of improvements made by plaintiff is $1,600. It is therefore decreed by the court that the plaintiff pay defendant two hundred dollars on or before the 1st day of October, 1890, and that on the payment of such sum of $200 to defendant A. Corse on or before the said 1st day of December, 1890, the defendant, and those claiming under him since the filing of this suit, shall be divested of all title to said lands; that the said $200 is hereby declared a lien on said land, and, unless the same be paid within the times above mentioned and specified, execution shall issue by the clerk of this court, commanding the sheriff of Phelps county, Missouri, to sell said real estate to satisfy said sum of $200 and costs of this suit." (4) A deed from the sheriff to plaintiff, Kelly, to the land in suit, under execution of that judgment.

The defendant introduced the following evidence. (1) The petition in the suit of Gebhart v. Corse, in which the judgment above shown was rendered. That petition was, in substance, to the effect that in December, 1880, one Louisa Snay, a married woman, sold the land in question to Gebhart for $150 in cash, which he paid to her, and the assumption of payment by him of two notes of Louisa Snay, amounting to $150, owing to one Allen, and secured by deed of trust on the land, duly recorded, which notes he afterwards paid; that Louisa Snay and her husband executed a deed to him and put him in possession of the land on December 16, 1880, and he has been in possession...