Marlow v. Liter

BOND, J. The answer did not ask to recover the value of the land aside from the improvements, nor tender the land for that purpose to the improver. R. S. 1899, sec. 3075; Cox v. McDivit, 125 Mo. 358. Hence, the only issue tendered by it was the value of the improvements put upon the land by the [588] occupying claimant in-good faith and before notice of the adverse title of the defendant. Erom the amount of the finding on this issue, the court should have deducted the rents and profits or other damages, if any, recovered in the previous action of ejectment, and for the balance thus ascertained, should have declared plaintiff entitled to recover, not by execution, but by retaining possession of the land until defendant should pay-such balance, enforcing its order in this respect by injunction. Russell v. Defrance, 39 Mo. 506; R. S. 1899, sec. 3074. The judgment should also have fixed a reasonable time for the payment of this balance, with a right in defendant to claim a further offset for rents and profits which should accrue up to the time of payment fixed by the order of the court. Stump v. Hornback, 109 Mo. 272. It follows that the court erred in the rendition of an unconditional judgment for the payment of money against appellant, to be enforced by execution. II. Appellant complains of certain instructions given for respondent. The first instruction for respondent was erroneous in that it submitted to the jury an issue as to damages suffered by the respondent and also another person who was not a party to this action. The issue in this case was solely as to the value of the improvements which permanently enhanced the value of the land, and which were made by the respondent (J. G. Mar-low) in good faith and in ignorance of the adverse title of the appellant. Nor do we see any necessity of commenting, as was done in instruction No. 2, upon the effect of a voluntary dismissal by appellant of a former action of ejectment against the grantor of respondent. Under the peculiar circumstances disclosed by the record in this case, the court might well have refrained from any statement of the inference to be drawn from such a dismissal; for the record in this case tends to show that the dismissal was made in open court in the presence of the defendant, and that a new suit was also filed on the same day in [589] the presence of the former defendant, against him and his grantee of the land. If the jury believed this state of facts, it would not follow that the first defendant in the ejectment suit would be warranted in assuming that the adverse title therein asserted had been abandoned. What constitutes notice, and hence absence of good faith, in cases like the present, has been defined by the Supreme Court in Brown v. Baldwin, 121 Mo. loc. cit. 114, et seq. The statutory provision for notice in writing (E. S. 1899, sec. 3080), is not preclusive, but was intended to suggest an additional method whereby the holder of an adverse title, by giving written notice thereof to the occupying claimant, could absolutely conduele the latter, and all persons claiming from and through him, upon the issue of notice as affecting subsequent improvements. Lee v. Bowman, 55 Mo. 400-403. It was not intended to exclude evidence of facts and circumstances tending to show “notice” as this term is applied in equity to the rights of one who improves real estate under a mistake of title. As used in this connection, the term “notice” implies actual knowledge, or actual information of any fact or circumstance of such a nature as to put a prudent man on inquiry, which, if followed, would lead to a discovery of an adverse title to the land in his possession. This definition necessarily excludes the mere fictional or constructive notice imparted by the records of deeds or the pendency of suits against others. Such theoretic or imputed notice is sufficient to prevent the acquisition of title to the land (103 Mo. loc. cit. 414; 139 Mo. loc. cit. 498), but it does not satisfy the requirements of the notice to an occupying claimant which shall prevent his recovery for lasting improvements permanently enhancing the value of the land. Brown v. Baldwin, 121 Mo. loc. cit. 116; Howard v. Massengale, 81 Tenn. oil. This distinction between the quality of notice as applied to the rights of a purchaser and an occupier of land is probably based upon the [590] necessity of the case if permission is given to one man to recover at all for improvements put upon the land of another. Fo.r if such occupier, having improved the land in the belief that it belonged to him, was cut off from any compensation when the title is adjudged adversely, because it appeared there was a record of such adverse title in suit against 'others therefor, prior to the making of the improvements; then the equity of the occupier would be cut off in most cases by the event of the suit establishing the title in another, since th^t result might happen purely from the legal effect of recitals of record affecting the chain of title. But whatever be the reason, the distinction above cited is settled by the decision of the courts. We have no doubt the learned trial judge, in view of what has been said, will frame correct instructions on the subject of notice and good faith on a second trial. For the foregoing reasons, the judgment herein is reversed and the cause remanded, with permission to the parties to amend the pleadings if they are so advised.