Staub v. Phillips

• Decision Date: 09 April 1925
• Docket Number: 24688
• Parties: EDWARD J. STAUB and GLADYS STAUB v. J. ARTHUR PHILLIPS et al., Appellants
• Court: Missouri Supreme Court

271 S.W. 365

307 Mo. 576

EDWARD J. STAUB and GLADYS STAUB v. J. ARTHUR PHILLIPS et al., Appellants

No. 24688

Supreme Court of Missouri

April 9, 1925

Appeal from Saline Circuit Court; Hon. Samuel Davis, Judge.

Reversed and remanded.

William M. Matthews and Harvey & Bellamy for appellants.

(1) An action to recover the value of improvements is an equitable one, and on appeal this court can review the evidence and determine wherein the preponderance lies. 3 Pomeroy's Equity Jurisprudence (4 Ed.) secs. 1237-1241, p. 2977; 2 Story's Equity Jurisprudence (14 Ed.) sec. 1089, p. 480; Secs. 1843, 1844, R. S. 1919; Lee v. Bowman, 55 Mo 400; Richmond v. Ashcraft, 136 Mo.App. 191; Valle's Heirs v. Fleming's Heirs, 29 Mo 152. (2) A life tenant who makes improvements believing himself to be the owner in fee is not entitled to the benefit of the occupying-claimant laws. Missouri Central B. & L Assn. v. Eveler, 237 Mo. 671; Gray v. Clement, 296 Mo. 297; Wilson v. Parker, 14 So. 264. (3) The compensation to which the occupying claimant is entitled for improvements is the amount by which he enhances the value of the property to the owner, and the court erred in allowing witnesses to give the value of each particular improvement. Stump v. Hornbeck, 94 Mo. 26; Sires v. Clark, 132 Mo.App. 537; Adams v. Kells, 79 Kan. 564; Young v. Commissioners, 53 F. 895; 14 R. C. L. 25, par. 15; 31 C. J. 334; Willis v. Robinson, 291 Mo. 650. (4) The judgment awarded by the court in the sum of $ 10,978 is excessive, and its finding is not sustained by any competent evidence. (5) The judgment of May 1, 1921, holding that plaintiffs had no right, title, interest or estate in the premises in controversy, estops them from asserting an equitable lien for the improvements in question. Marston v. Catterlin, 190 Mo. 185; Sec. 1970, R. S. 1919; Tolbert v. Grist, 198 Mo.App. 499; Holcomb v. Mays, 202 Mo.App. 167; Gray v. Clement, 296 Mo. 297; Hill v. Ballard, 178 S.W. 445; Donnell v. Wright, 147 Mo. 639; Norman Land Co. v. Idalia Realty Co., 205 Mo.App. 474. (6) The court erred in not holding that the plaintiffs were guilty of permissive waste in permitting the dwelling house, located on the premises at the time their grantors went into possession, to burn down, and in not holding that they were required to restore the same without cost to the remaindermen. Sec. 7048, R. S. 1919; Baker v. Crandall, 78 Mo. 584; Secs. 6910, 6911, 6916, 6917, R. S. 1919; White v. Rose, 69 Mich. 259; Boefer v. Sheridan, 42 Mo.App. 226.

Duggins & Duggins and Perry S. Rader for respondents.

(1) This was an action at law, tried by the court sitting as a jury, a jury having been waived. Sec. 1834, R. S. 1919; Minor v. Burton, 228 Mo. 558; Cox v. McDivit, 125 Mo. 361; Malone v. Stretcher, 69 Mo. 26; Sires v. Clark, 132 Mo.App. 541; Bristol v. Thompson, 204 Mo. 370; Russell v. Defrance, 39 Mo. 513; Stump v. Hornbeck, 94 Mo. 27. Being an action at law, triable by a jury, it was the province of the court sitting as a jury to weigh the evidence and determine the credibility of the witness, and that is a duty which the appellate court cannot usurp. If the findings of the trial court are supported by substantial evidence, on any issue of fact, the appellate court, upon appeal will not interfere with the finding, but will accept the finding as conclusive of that issue. Sexton v. Sexton, 295 Mo. 142, 143; Slicer v. Owens, 241 Mo. 323; Levels v. Railroad Co., 196 Mo. 617; Lindsay v. Kansas City, 195 Mo. 166, 179. (2) An occupying claimant who has acquired a warranty deed from the life tenant, purporting to convey the entire estate, who makes improvements thereon in good faith and in the belief that he has acquired the fee, prior to the time he has notice that another has the better title, is entitled to recover compensation for the improvements, upon the rendition of a judgment of dispossession in favor of the person shown to have a better title. And the plaintiffs in this case were entitled to recover compensation not only for the improvements placed upon the land by themselves, but for those made by their predecessor and grantor. Sec. 1834, R. S. 1919; Stump v. Hornbeck, 15 Mo.App. 367, approved by Supreme Court, 94 Mo. 26, l. c. 35, and point accepted as settled on second appeal, 109 Mo. 272; Gallenkamp v. Westmeyer, 116 Mo.App. 680; Eisberg v. Phillips, 197 Mo.App. 329; Sires v. Clark, 132 Mo. 538; Thomas v. Evans, 105 N.Y. 601; Bloom v. Strauss, 70 Ark. 483; Fee v. Cowdry, 45 Ark. 410; Killmer v. Wuchner, 79 Iowa 722. See also: Dothage v. Stewart, 35 Mo. 255; Russell v. Defrance, 39 Mo. 506; Boatmen's Sav. Bank v. Grewe, 101 Mo. 629 (2); Shanklin v. Ward, 291 Mo. 18; Gray v. Clement, 296 Mo. 512-513. (3) The measure of compensation the person in possession who has been dispossessed by a judgment in ejectment is entitled to recover is the increase in the value of the land caused by the improvements. But in ascertaining the enhancement it is proper to allow witnesses to state the dimensions of each improvement, the kind of material of which it is constructed, its present condition, and its present worth as it stands upon the land. One of the means of showing the amount of the enhancement is to show their present worth in their present state as they stand upon the land. Sires v. Clark, 132 Mo.App. 541; Orchard Co. v. Railroad, 173 Mo.App. 450, 456; McDonald v. Kinney, 101 Ark. 19; New York, N. H. & H. R. Railroad Co. v. Cella, 88 Conn. 527; Pacquette v. Pickens, 19 Wis. 219, 225; Matthews v. Mo. Pac. Ry. Co., 142 Mo. 666; Conner v. Mo. Pac. Ry. Co., 181 Mo. 419. No declarations of law were asked or given, and in such case the presumption will be indulged on appeal that the judgment was based on that theory of the case which authorized it. Farmers' Bank v. Barbee, 198 Mo. 465, 471; Gibson v. Baily Co., 114 Mo.App. 350, 357. (4) The judgment was not excessive. There was substantial evidence showing that the enhanced value of the land produced by the improvements made by plaintiffs and their predecessor prior to April 8, 1904, was $ 10,978, or more. In such case this court does not interfere with the finding, but examines the evidence only so far as to see whether there was substantial evidence produced to support the finding. Sexton v. Sexton, 295 Mo. 142, 143; Slicer v. Owens, 241 Mo. 323; Levels v. Railroad Co., 196 Mo. 616, 617; Lindsay v. Kansas City, 195 Mo. 166, 179; Sec. 1513, R. S. 1919; Smith v. Royse, 165 Mo. 654, 657; Lanyon v. Chesney, 209 Mo. 11. (5) The judgment of the circuit court in appellants' action to quiet title, adjudging that these plaintiffs had no right, title, interest or estate in the land, did not estop the plaintiffs from maintaining this action to recover compensation for the improvements placed upon the land in good faith and without notice of the adverse title. The value of the improvements was not, and could not have been, adjudicated in that suit. Before the occupying claimant can maintain a suit for compensation for improvements made there must have been a previous judgment of dispossession. Plaintiffs did not claim title through these appellants. Sec. 1834, R. S. 1919; Tetley v. McElmurry, 201 Mo. 395; Henderson v. Langley, 76 Mo. 228; Tice v. Fleming, 173 Mo. 56; Bristol v. Thompson, 204 Mo. 369; Anderson v. Sutton, 301 Mo. 60; Woolcot v. Smith, 33 Okla. 249, 252. (6) There was no issue of permissive waste in the case. The answer did not charge plaintiffs with permissive waste, or ask that appellants be reimbursed for a dwelling house located on the land at the time Kunze went into possession and which they say had burned down. It could not properly be made an issue in this case. (a) Waste is an element of damages to be recovered in the action of ejectment. It is not a defense, even by way of recoupment, in the action for the recovery of compensation for the improvements. Sec. 1827, R. S. 1919; Sieferer v. St. Louis, 141 Mo. 596; Adams v. Gilchrist, 63 Mo.App. 640, 647; Cape Girardeau M. & Grav. Road Co. v. Renfroe, 58 Mo. 576; Jones v. Manly, 58 Mo. 559, 563; Lee v. Bowman, 55 Mo. 404; Stewart v. Dent, 24 Mo. 111; Fuller v. Fair, 80 So. 815. (b) Appellants did not ask for damages for waste, or for the value of the house that had been burned, or that plaintiffs be compelled to restore the house, in their answer, and therefore in no event could plaintiffs have been held "guilty of permissive waste." The issues are confined to the pleadings, and must come within the scope of their allegations. (c) There was no proof of the value of the two-room house which appellants contend was burned. There is no word of evidence in the entire record relating to its value. (d) The evidence did not show that the house burned while plaintiffs and their predecessor were in possession of the land. (e) In no event could appellants have recovered the value of the house, even if it were an established fact that it burned while plaintiffs were in possession of the land. The measure of waste or injuries to the freehold is the diminished value of the land. Alsop v. Peck, 2 Root (Conn.) 224; Cooch v. Greery, 3 Del. 423; Norman v. Beckman, 58 Fla. 325; Cunningham v. Morris, 19 Ga. 583; Anderson v. Atcheson, 132 Iowa 744; Lewis v. Singleton, 2 A. K. Marsh. (Ky.) 214; Johnson v. Futch, 57 Miss. 73; Morgan v. Varick, 9 Wend. (N. Y.) 587; Lippert v. Kelly, 46 Vt. 516; Nelson v. Churchill, 117 Wis. 10.

Higbee, C. Railey, C., concurs.

OPINION

HIGBEE

This action was brought on May 10, 1921, under Section 1834, Revised Statutes 1919, to recover compensation for improvements put upon land by plaintiffs and their grantor, George Kunze, in good faith, prior to notice of defendants' claim of adverse title. In an action of ejectment defendants, as plaintiffs, recovered judgment against plaintiffs, as defendants,...