Henderson v. Langley

Hough, J.

This is an action of ejectment. The circuit court, after hearing testimony as to the title, also heard testimony as to the value of improvements, which defendant alleged in his answer had been put upon the land by him in good faith and under the belief that he had a good title to the land, and also as to the amount of taxes paid by him while in possession thereof, and thereupon rendered judgment for the plaintiffs for the possession of the land, and also decreed that the plaintiffs should pay the defendant the sum of $485, (that being the excess in value of the improvements and taxes over the damages and rents,) and in default of the payment thereof, within one year, that special execution should issue therefor and the land in *228 controversy be sold to pay said sum. From this judgment the plaintiffs have appealed.

It has been repeatedly held by this court that when it appears in an action of ejectment, that the defendant has purchased land from the plaintiffj or in administration proceedings, or at sales under mortgages, and has paid the purchase money, entered into possession and made improvements in good faith, but failed to obtain the legal title intended to be sold, and could not have specific performance the owner of such legal title, or his grantee having notice of such facts, will not be permitted to eject such purchaser without accounting for the purchase money and paying for the improvements made. Shroyer v. Nickell, 55 Mo. 264 ; Evans v. Snyder, 64 Mo. 516 ; Sims v. Gray, 66 Mo. 614 ; Mobley v. Nave, 67 Mo. 546 . But where, as in the case at bar, the defendant enters into possession under a stranger to the title of plaintiff, in order to obtain the value of any improvements made by him, he must proceed as provided by sections 2259, 2260 and 2261 of the Revised Statutes. The claim for improvements made under the sections cited cannot be presented or heard in the action of ejectment. It is intended to be an independent proceeding, and can only be instituted after final judgment of' dispossession shall have been rendered against the defendant in the suit of ejectment. Russell v. Defrance, 39 Mo. 506 ; Malone v. Stretch, 69 Mo. 25 .

The judgment will be reversed and the cause remanded with directions to the circuit court to enter up an ordinary judgment in ejectment against the defendant, and he may then prefer his claim for improvements and be heard thereon in pursuance of the statute.

All the judges concur.