Michalski v. Grace

• Decision Date: 05 December 1910
• Citation: 151 Mo. App. 631,132 S.W. 333
• Parties: MICHALSKI v. GRACE et al.
• Court: Missouri Court of Appeals

132 S.W. 333

151 Mo. App. 631

MICHALSKI v. GRACE et al.

Springfield Court of Appeals. Missouri.

December 5, 1910.

1. STATUTES (§ 243) — CONSTRUCTION.

In an action under Rev. St. 1899, §§ 3072, 3073 (Ann. St. 1906, p. 1767), now Rev. St. 1909, §§ 2401, 2402, to recover for improvements placed on land by plaintiff, while occupied by him under claim of title and without notice that defendant had title, the statutes should be liberally construed.

2. EJECTMENT (§ 146) —PLEADING.

In an action under Rev. St. 1899, §§ 3072, 3073 (Ann. St. 1906, p. 1767), now Rev. St. 1909, §§ 2401, 2402, to recover for improvements placed on lands by plaintiff while occupied by him under claim of title and without notice that defendant had title, plaintiff alleged that he purchased the land from P. who had bought from G. under whom defendants inherited, paying P. a specified sum, that he went into possession on a certain date, and that the parties from whom he purchased having refused to make a deed he sued P. and G., and obtained a decree quieting his title, and that he made the improvements in good faith without notice of adverse claim, but that defendants had obtained a judgment against him in ejectment. Held, that the petition was sufficient.

3. ESTOPPEL (§ 68) — CLAIM IN ACTION.

A party may be bound in one suit by his pleading in a former suit, and in a proper case should not be permitted to assert matter contradictory to the position taken in his former pleading.

4. EJECTMENT (§ 142) — NOTICE OF ADVERSE CLAIM.

The notice which will prevent the occupant of land who has a judgment of ejectment against him from recovering under Rev. St. 1899, §§ 3072, 3073 (Ann. St. 1906, p. 1767), now Rev. St. 1909, §§ 2401, 2402, for improvements made, must be actual notice. It must be notice of an adverse claim of title, and the fact that there is a superior title in another party, and that that title appears of record, is not of itself a sufficient notice to defeat the action.

5. ESTOPPEL (§ 68) — ACTION — PLEADINGS.

G. sold certain land to P., the contract of sale being of record, and P. through his agent M. sold it to plaintiff, and promised to make a deed, but failed to do so. Plaintiff sued to quiet title against P. and G. and secured a decree. G. being dead the decree was of no avail, and the heirs of G. recovered in ejectment. Plaintiff then sued, under Rev. St. 1899, §§ 3072, 3073 (Ann. St. 1906, p. 1767), now Rev. St. 1909, §§ 2401, 2402, for improvements made. In the ejectment suit plaintiff's answer alleged that he went into possession claiming as owner, having purchased through P. and M. who represented themselves to be the agents of G., alleged to be the ancestor of defendant. Held, that the answer did not estop him from asserting that he had no notice of the title of G.

6. EJECTMENT (§ 142) — AMOUNT OF RECOVERY.

Where, in an action under Rev. St. 1899, §§ 3072, 3073 (Ann. St. 1906, p. 1767), now Rev. St. 1909, §§ 2401, 2402, for improvements made on land which had been recovered in ejectment by defendants from plaintiff, it appeared that on a certain date prior to the ejectment suit plaintiff commenced a suit to quiet title against defendant's ancestor, it was proper to limit plaintiff's recovery to improvements made at that time.

Appeal from Circuit Court, Ripley County; J. C. Sheppard, Judge.

Action by Charles Michalski against William O. Grace and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Oscar L. Smith and Thomas Mabrey, for appellants. C. B. Butler and C. O. Borth, for respondent.

COX, J.

Action by plaintiff against defendants for improvements placed upon certain lands in Ripley county by the plaintiff while occupied by him, as he contends, under claim of title, and without notice that defendants had title. Trial was had before a jury, and verdict rendered for plaintiff in the sum of $1,000, and defendants have appealed.

The first contention is that the petition in this case is wholly insufficient, and that defendants' objection to the introduction of any testimony under it should have been sustained. We call attention, first, to the fact that the sections of the statute under which this action was brought, to wit, sections 3072 and 3073, Rev. St. 1899 (Ann. St. 1906, p. 1767) now sections 2401 and 2402, Rev. St. 1909, are remedial in their character, and the statutes as well as proceedings under them are to be liberally construed in furtherance of justice between the parties. Cox v. McDivit, 125 Mo. 358, 28 S. W. 597; Stump v. Hornback, 109 Mo. 272, 18 S. W. 37.

The petition in this case alleges, in substance, that defendants had brought an ejectment suit against this plaintiff on the 16th day of October, 1907, for the possession of the land on which it was claimed the improvements were made, and that as a result of that action judgment went in favor of defendants and against plaintiff for the possession of the land. Plaintiff then sets out his claim of title, which is that he purchased the land from Charles Peters who had bought the land from James A. Grace, through his agent, C. H. Martin, from whom defendants inherited said land, paying said Peters $1,680; that he went into possession under his purchase on the 10th day of May, 1905, and was still in possession; that the parties from whom he purchased had refused to execute a deed; that he had brought suit against said Charles Peters and James A. Grace, and...