Seidel v. Cornwell

• Decision Date: 17 December 1901
• Citation: Seidel v. Cornwell, 166 Mo. 51, 65 S.W. 971, 89 Am.St.Rep. 674 (Mo. 1901)
• Parties: SEIDEL v. CORNWELL et al.
• Court: Missouri Supreme Court

65 S.W. 971

166 Mo. 51

SEIDEL v. CORNWELL et al.

Supreme Court of Missouri, Division No. 1.

December 17, 1901.

ACTION TO DETERMINE TITLE—RENTS AND PROFITS—RIGHT TO REMOVE BUILDINGS—EJECTMENT—REPLEVIN.

Certain unimproved land was conveyed by trust deed, and afterwards improved by the

construction of several houses thereon, after which grantor surrendered possession to the trustee and cestui que trust. Plaintiff purchased the premises at sheriff's sale under a judgment establishing a mechanic's lien for labor in constructing the houses, and brought action against the parties in possession under Rev. St. 1899, § 650, providing that any person claiming title to realty may institute action against any adverse claimant. The petition prayed for an accounting as to rents and profits, for right to remove the houses, and an injunction restraining defendants from interfering with such removal. Held, that plaintiff was not entitled to litigate the question of damages for detention of possession, or enforce his right to remove the houses under section 650; ejectment being the proper remedy in the one case, and replevin in the other.

Appeal from St. Louis circuit court; H. D. Wood, Judge.

Action by Julius Seidel against Frederick J. Cornwell and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

This case is here upon appeal by the plaintiff from a judgment of the circuit court of the city of St. Louis sustaining a demurrer to the petition. The contest is between the purchaser of the land and houses at a sheriff's sale under a judgment establishing a mechanic's lien thereon for work and labor done after the deed of trust was put on the unimproved land, and the original owner of the land and of the houses and the holder of the deed of trust. The material allegations of the petition are (1) that the Cornwells owned certain unimproved land, and executed to Vogel, as trustee for Fisher, five deeds of trust thereon to secure the payment of certain notes; (2) that the deeds of trust have never been foreclosed, but that the Cornwells have turned over the possession to the trustee and the cestui que trust, with authority to collect the rents and apply them upon the secured debt, which they are doing; (3) that after the deeds of trust were executed the Cornwells built five houses on the land, and that certain judgments were rendered on mechanics' liens, as special liens against the land and the improvements, in actions wherein the Cornwells and Fisher and Vogel were parties, and at the sheriff's sale thereunder the plaintiff became the purchaser of the land for $50, and of the five houses for $500; (4) that the plaintiff is entitled to the possession of the land subject to the deeds of trust, and also to rents and profits since the date of the purchase, and also to remove the improvements, "all of which rights, titles, and interests of the plaintiff are denied by said defendants, they claiming title to said real estate and improvements as against said rights, titles, and interests of plaintiff thereto." The prayer of the petition is that under the act of 1897 (Acts 1897, p. 74) the court ascertain and determine the estate, title, and interest of plaintiff and defendants, respectively, in said land and improvements; that plaintiff be declared to have title to the houses in priority over the deeds of trust; that an accounting of rents and profits be had; that plaintiff be decreed the right to remove the houses from the land; and that defendants be enjoined from hindering...