Smith v. Mount

• Decision Date: 14 June 1910
• Citation: 149 Mo. App. 668,129 S.W. 722
• Parties: SMITH v. MOUNT.
• Court: Missouri Court of Appeals

129 S.W. 722

149 Mo. App. 668

SMITH v. MOUNT.

St. Louis Court of Appeals. Missouri.

June 14, 1910.

1. EJECTMENT (§ 142)—RECOVERY FOR IMPROVEMENTS— IMPROVEMENTS IN BAD FAITH.

Under Rev. St. 1899, § 3072 (Ann. St. 1906, p. 1766), permitting one against whom a judgment of dispossession is had in an action for possession or in a real action for the premises to recover compensation for improvements made in good faith on the premises prior to notice of the adverse title, one dispossessed in ejectment cannot recover for improvements not made in good faith, and the same is true under the modern common-law rule, so that even if a suit by the substituted curator of an infant defendant

after the infant's stepfather had been removed as curator to establish a resulting trust in land purchased with the money of the infant and his mother, and to partition it between the stepfather and the infant, were an action in ejectment, the stepfather could not recover for improvements placed on the land when he was claiming all of it; he then having no interest in the infant's part of the land, and not having made the improvements in good faith.

2. NOTICE (§ 6)—CONSTRUCTIVE NOTICE— GOOD FAITH.

One cannot have acted in good faith with reference to a matter when he has such notice thereof as would put one of ordinary prudence on inquiry.

3. IMPROVEMENTS (§ 4)—GOOD FAITH—SUFFICIENCY OF EVIDENCE.

In an action by one who had been removed as curator of defendant for waste of the estate and for claiming to own the entire estate when he was only a joint tenant, to recover for improvements made on the land while he was in possession claiming it, evidence held to show that the improvements were not made in good faith by plaintiff.

4. TAXATION (§ 634)—LIEN.

The state has a lien for taxes assessed against realty which may be enforced by an action at law when the property may be sold on execution after judgment, so as to divest the owner of his entire estate.

5. TENANCY IN COMMON (§ 30)—MUTUAL RIGHTS—TAXES—CONTRIBUTION.

A tenant in common is entitled to contribution from his co-tenant for taxes paid on the common estate, though he was at the time wrongfully claiming title to the whole estate, since by paying taxes he protected his co-tenant's interest as well as his own.

6. TENANCY IN COMMON (§ 30)—MUTUAL RIGHTS—TAXES—CONTRIBUTION.

Where plaintiff, who was removed as defendant's curator for wasting the estate and claiming all of it when he had only a joint interest therein as co-tenant, was charged with rents while in possession for defendant's interest in a suit by defendant to establish a resulting trust in his favor and for partition, justice requires that plaintiff be compensated to the extent of a proportionate part of the taxes paid by him on the joint estate while in possession.

Appeal from Circuit Court, Scotland County; Chas. D. Stewart, Judge.

Action by James H. F. Smith against J. F. Mount, guardian of Irvin F. Padgett. From a judgment for defendant, plaintiff appeals. Reversed and remanded, with directions to enter judgment for plaintiff as stated.

O. D. Jones and E. R. Bartlett, for appellant. Smoot & Smoot, for respondent.

NORTONI, J.

This is a suit for the amount of taxes paid and the value of improvements placed on plaintiff's land by defendant. The court found the issue and gave judgment for defendant. Plaintiff prosecutes the appeal.

The suit proceeds against Mount, who is curator of Irvin F. Padgett, a minor, the defendant in interest. Plaintiff was formerly curator of the minor Padgett, but was removed from the office by the probate court of Scotland county for the reason he had abused the trust. The judgment of removal was finally approved by this court, as will appear by reference to In re Estate of Padgett, 114 Mo. App. 307, 89 S. W. 886. It appears plaintiff Smith intermarried with Mrs. Padgett, a widow, who was the mother of the infant defendant. After having married Mrs. Padgett, Smith was appointed curator of the estate of her son, the defendant, Irvin F. Padgett, and given charge of his property. The minor inherited about $1,400 in cash from his father's estate. Plaintiff Smith, the then curator, invested this $1,400 of the ward, without any authority from the probate court to do so, together with about $1,200 of his wife's money and a few hundred dollars of his own in 165 acres of land in Scotland county, the title to which was taken in the name of plaintiff Smith and his wife. Shortly thereafter, Mrs. Smith, the mother of the infant defendant, departed this life, and thereupon plaintiff Smith, notwithstanding his curatorship, set up a claim to the entire tract of land as survivor in joint tenancy with his deceased wife. Mrs. Smith left no heir other than her son by her first husband, the present defendant, and Smith claimed the entire estate on the theory that, though his wife left an heir by her former husband, the law of joint tenancy invested him with the title to the land as survivor. It was for his dereliction in duty in investing money of the infant defendant and taking title in his own name and the adverse claim thereafter set up that he was removed as curator by the probate court. After Smith's removal, another was appointed to represent the interests of the infant, and suit was instituted in the circuit court to declare a resulting trust in the lands mentioned in favor of the infant, Irvin F. Padgett, who is defendant here. A partition of the lands was also prayed in that action. Upon a trial being had, the court declared the trust and decreed a partition of the lands between the infant, Irvin F....