Seidel v. Cornwell

MARSHALL, J. 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 Louses at a sLeriff’s sale, under a judgment establishing a me [54] chanic’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: first, that the Cornwells owned certain unimproved land, and executed to Vogel as trustee for Eisher, five deeds of trust thereon to secure the payment of certain notes; second, 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; third, that after the deeds of trust were executed the. Cornwells built five houses on the land, and that certain judgments were rendered on mechanic’s liens as special liens against the land and the improvements, in actions wherein the Cornwells and Eisher and Vogel were parties, and at the sheriff’s sale thereunder the plaintiff became the purchaser of the land for fifty dollars, and of the five houses for five hundred dollars; fourth, 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 (Laws 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 or preventing such removal, and for general relief. The demurrer is, practically, general. [55] I. Counsel are not agreed as to the natuie of this action. Plaintiff’s counsel insists that it is a proceeding at law under the Act of 1897 (now sec. 650, R. S. 1899), while defendants’ counsel contend that it is a bill in equity. If it is a proceeding under the Act of 1897, it is broader than that act, in that it asks for an accounting as to rents and profits, and for the right to remove the houses, and for an injunction against the defendants from interfering with the removal thereof, and for general relief. That act is intended only to settle title to real estate, and affords no authority for the other relief asked herein. The title of the plaintiff to the real estate in this case is correctly stated in the petition, and confessed by the demurrer, to be the equity of redémption, subject to the deeds of trust, and this is so because the plaintiff has succeeded to the rights of the Cornwells, and such will be their title until a foreclosure of the deeds of trust, which has not yet occurred. This being true, the plaintiff’s proper remedy was ejectment In that form of action, upon such status of the parties, the plaintiff would have been entitled to the possession of the land and the houses until the foreclosure of the deeds of trust, and would also be entitled to damages for the detention. In addition, because the plaintiff was the owner of the equity of redemption, he would have been entitled to pay off the mortgages, but the petition alleges no such offer and claims no such right. The petition correctly states, also, and the demurrer admits, that the plaintiff has a better title to the houses than the defendants have, and, under section 4205, Revised Statutes 1899, he was entitled to remove them within a reasonable time after his purchase at the sheriff’s sale. But the Act of 1897 can give him no relief of that kind. If the defendants refused to allow him to remove them, he could have maintained an action in replevin for them (Schulenburg v. Hayden, 146 Mo. 583); or he could have treated it as a con [56] version and have recovered their value (Seibel v. Siemon, 52 Mo. 363; Ibid., 72 Mo. 526). The rights of the parties under such circumstances are clear, and the law has- always afforded adequate and appropriate remedies. The Act of 1897 was not intended to apply to such eases, nor to supersede the ordinary and well-known remedies for the correction of the wrongs here complained of. The case of Huff v. Land Co., 157 Mo. 65, and Thorn & Hunkins Co. v. Bank, 158 Mo. 272, have no application to this case. The Huff case fell clearly within the purview of the Act of 1897, while the Act of 1897 had no bearing upon the Thorn-Hunkins case. The judgment of the circuit court is affirmed. All concur.