Montgomery v. Gahagan

• Decision Date: 30 November 1912
• Citation: 151 S.W. 453,246 Mo. 310
• Parties: MONTGOMERY v. GAHAGAN.
• Court: Missouri Supreme Court

151 S.W. 453

246 Mo. 310

MONTGOMERY v. GAHAGAN.

Supreme Court of Missouri, Division No. 1.

November 30, 1912.

1. JUDGMENT (§ 107) — DISPOSAL OF ISSUES — NECESSITY.

Where an answer contained a general denial, as well as allegations of facts on which defendants based a claim for affirmative relief, defendant's refusal to plead further, after a demurrer was sustained to the affirmative part, did not leave him in default so as to warrant judgment against him.

2. APPEAL AND ERROR (§ 499) — REVIEW — RECORDS.

The question whether the issues raised by demurrer to part of an answer were concluded by an adverse ruling on motion to strike out cannot be raised on appeal, where the record does not show that it was brought to the attention of the lower court.

3. EJECTMENT (§ 144) — RECOVERY FOR IMPROVEMENTS — LIEN.

A purchaser of land sued in ejectment by the vendor, on default in payment of installments of the contract price, cannot have the value of his improvements on the premises, made under a collateral contract with the vendor, charged as a lien on the land, but is limited to setting them off against the damages claimed by the vendor, since Rev. St. 1909, § 2401 et seq., giving the right to charge the improvements against the land, requires it shall be done in a separate proceeding, and is further limited to improvements made by one claiming ownership, and before notice of any adverse claim.

4. APPEAL AND ERROR (§ 1073) — HARMLESS ERROR.

Where, in ejectment, a demurrer was sustained to part of the answer of defendant purchaser praying that his improvements be made a lien on the land, and, on refusal to plead further, a default judgment was rendered for plaintiff vendor, though there was also a general denial, the judgment could not be sustained on appeal, on the theory that, while defendant could set off the improvements against damages, defendant was not prejudiced, since only nominal damages were recovered.

Appeal from Circuit Court, Greene County; James T. Neville, Judge.

Action in ejectment by Peter H. Montgomery against D. W. Gahagan. Judgment for plaintiff, and defendant appeals. Reversed.

This is an action in ejectment, instituted January 15, 1907, in the Newton county circuit court, to recover a piece of ground in the city of Seneca in that county, on which a flour mill was situated.

The defendant filed an answer, in which he denied specially that plaintiff was entitled to possession of the premises, and generally denied "each and every allegation contained in said petition, except what is hereinafter specially admitted." For further answer it stated that the defendant was placed in possession of the premises under a contract executed by plaintiff to sell and convey the same to defendant, and set forth a true copy thereof. It is dated June 30, 1905, signed by the plaintiff and his wife as parties af the first part, who, by its terms, agreed that, if defendant, the party of the second part, should first make the payments and perform the covenants therein contained to be kept and performed by him, they would convey to him the premises in fee, clear of incumbrances, by warranty deed. The defendant was to pay the sum of $3,000 in 12 semiannual payments, due, respectively, on the 1st days of January and July of each year, beginning January 1, 1906, the last being due July 1, 1911, without interest. It was further provided as follows: "And in case of the failure of said party of the second part to make either of the payments or perform any of the covenants on his part hereby made and entered into, this contract shall, at the option of the parties of the first part, be forfeited and determined, and the party of the second part shall forfeit all payments made by him on this contract, and such payments shall be retained by the said parties of the first part in full satisfaction and in full liquidation of all damages by them sustained and they shall have the right to re-enter and take possession of the premises aforesaid; and it is mutually agreed by and between the parties hereto that in construing this contract time shall be an essential." These payments were evidenced by promissory notes, payable as stated above. The answer then proceeded to state that the premises in suit consisted of lands on which was situated a small steam flouring mill in a crude, unfinished, and dilapidated condition, erected in 1901; that it was operated for a year or more and then abandoned for about two years, and, at the time of its purchase by defendant, had so deteriorated as to be almost valueless; that its abandonment by plaintiff was brought about by financial embarrassment due to the incapacity of the mill to earn a profit without large improvements and additions to its equipment, and plaintiff consented and agreed that the improvements must be made before it could be successfully operated; that by reason of these facts plaintiff sold to defendant and put him in possession of the mill on deferred payments, without interest, and that defendant would have to expend large sums of money in rebuilding and improvements and additions to said mill, and it was agreed that defendant would add a complete and finished corn-milling plant, a large platform wagon scales with dump and suitable shed over the same, with corn drag and wheat conveyors from said dump, and additional elevators in the mill; "that in consideration of the improvements and additions to be made on said mill, and in consideration of the very large expenditure of money by the defendant, the plaintiff sold to defendant the said milling plant and the land as described, as aforesaid, without the payment of any sum of money in advance by defendant to plaintiff, it being agreed and understood that said improvements and additions were absolutely necessary to put the mill in a serviceable condition; that it was agreed and understood by and between the plaintiff and defendant that said improvements and additions to be made at the cost and expense of the defendant would amply secure the plaintiff for any default in the deferred payments of the notes of the defendant, as aforesaid; that it was agreed and understood by and between the plaintiff and defendant that until said mill was placed in a condition to earn a profit, by making the improvements and additions as aforesaid, it would be impossible for the defendant to pay off and discharge and extinguish his said notes or any of them; that the defendant did, on being placed in possession of the premises, as aforesaid, by plaintiff, diligently proceed at once, in good faith, to the building and completion of all the aforesaid improvements and additions, and many more, under the contract and agreement by and between the plaintiff and defendant, as aforesaid, at his own expense, and did, as rapidly as possible and practical under the circumstances, put the milling plant in perfect repair and good order for successful operation; that all of said improvements and additions were made with the full knowledge and consent and contract and agreement of the plaintiff."

It then set out an itemized account of the money so expended between the date when defendant took possession of the mill and November 2, 1905, amounting to $1,822.98, and stated that defendant had paid cash on the notes, without giving dates therefor, amounting to $175, and that the mill was worth $2,500 more than at the time of the purchase, and that defendant went into possession and made the said improvements by the authority of the plaintiff, and did not hold adversely to plaintiff, but under and by authority from him, and that there were no other writings between them than the contract and notes mentioned. The answer asked judgment for the sum of $1,997.90, the amount of the expenditure for improvements and cash paid on the notes, less any amount that might be found by the court to be due for rent, and that...