Boatmen's Savings Bank v. Grewe

| Mo. | Oct 15, 1890

Black, J.

This is a suit in equity to redeem lots 17 and 18 in Belt’s addition to St. Louis from a sale of the lots for payment of taxes, and for possession. The facts are these:

Manning Mayfield, by a deed of trust dated the first of. June, 1876, conveyed the lots to Henry Belt in trust to secure Mayfield’s note of the same date for $292.50, due in one year and payable to Greorge Belt and Francis Tafts. The note was duly assigned to the plaintiff -within -twenty days after its date. Thereafter the collector' commenced suit to enforce the lien for taxes for the year 1876. The parties named in the deed oh trust were made defendants, but the plaintiff, the then owner of the note, was not made a party to that suit. Judgment was rendered in the tax suit, and by virtue of a special execution issued thereon the sheriff sold the property in February, 1880, lot 17 to Hiemenz arid lot 18 to Walker. The defendant purchased both lots from the last-named persons, receiving a quitclaim deed from Hiemenz in May, 1880, and a warranty deed from Walker in July, 1881. Defendant improved lot 17 in 1880 by erecting a dwelling-house and outhouses thereon at a cost of some two thousand dollars, and subsequently he made some improvements of no great value on the other lot.

Plaintiff caused both lots to be sold under the deed of trust on the first of September, 1881, and became the purchaser at that sale, and thereafter commenced this suit to redeem.

The circuit court found that defendant was entitled to $78.09 on account of the tax sales, and that he was entitled to seventeen hundred dollars, “being the present value of the permanent improvements made on said land by defendant since the sale' for taxes.” The decree allows the plaintiff to redeem upon the payment of $1,778.09. Should plaintiff fail to redeem within a specified time, the defendant is allowed to redeem by paying the mortgage debt and taxes paid by the plaintiff. Both parties failing to redeem the decree goes on to order a sale, and, after the payment of costs, the proceeds are to be paid out as follows: First, to defendant, $78.09; second, to plaintiff, for taxes paid by it, $19.88; third, to the defendant, seventeen hundred dollars ; and, fourth, to plaintiff, the remainder.

1. The plaintiff appealed from this decree, and the first objection is, that the court erred in requiring it to pay for the improvements.

The lien for unpaid taxes was paramount to that created by the deed of trust. As the plaintiff, the holder of the debt secured by the deed of trust, was not made a party to the tax foreclosure suit, it has the right to redeem from the tax sale. Boatmen’s Savings Bank v. Grewe, 84 Mo. 477" court="Mo." date_filed="1884-10-15" href="https://app.midpage.ai/document/boatmens-savings-bank-v-grewe-8008190?utm_source=webapp" opinion_id="8008190">84 Mo. 477, following prior adjudications. .The defendant, therefore, occupies a position like that of one who is in possession under a defective foreclosure sale. In such cases the purchaser, who has made valuable improvements in the belief that he has acquired an absolute title, is entitled to be paid the value of the improvements, in case the premises are redeemed. 2 Jones on Mortgages [4 Ed.] sec. 1128; Martin v. Ratcliff, ante, p. 254. The same rule must be applied in the present case.

2. It is further insisted that defendant was not a purchaser in go'od faith. We have held, under the occupying-claimant law, that constructive notice implied by a recorded deed is not sufficient to defeat a claim for improvements. Stump v. Hornback, 94 Mo. 26; s. c., 15 Mo. App. 367" court="Mo. Ct. App." date_filed="1884-04-15" href="https://app.midpage.ai/document/stump-v-hornbeck-8258849?utm_source=webapp" opinion_id="8258849">15 Mo. App. 367. But in this case the defendant and his grantors did not even have constructive notice; for while they did have constructive notice of the deed of trust there was nothing on record to show that the note had been assigned to the plaintiff. The defendant says he had no knowledge of the plaintiff ’ s claims when he purchased and erected the house on one of the lots, and the circumstances are all to the effect that he purchased in good faith, believing he acquired a good title. It is a matter of no consequence that he acquired one of the lots by a quitclaim deed ; for he acquired all the rights of his grantor. Both purchasers at the tax sale evidently believed they had acquired the title. We entertain no doubt whatever but the defendant purchased the property and made the improvements in good faith.

3. The defendant occupied the property in its improved state up to the date of the decree rendered in this case, and the next question is whether he should have been charged with rents. There is no evidence that the lots had any rental value until improved by defendant. With the improvements, they are estimated to have a rental value of from twelve to eighteen dollars per month.

In an accounting between a mortgagor and a mortgagee in possession, the mortgagee is allowed the cost of reasonable and proper repairs, and he is charged with rents, which rents are estimated upon the property as it stands improved by the repairs. Ordinarily a simple mortgagee in possession would not be allowed for improvements such as were made in the present case. But as the defendant built upon the property in good faith, believing he had acquired a good title, he is allowed the value of the improvements. This value, not the cost, is estimated at the date of the decree. He ought not to be charged with the rents for the house, for it is in a sense his own property until he is paid its value. Martin v. Ratcliff, supra; Poole v. Johnson, 62 Iowa, 611" court="Iowa" date_filed="1883-12-15" href="https://app.midpage.ai/document/poole-gilliam--co-v-johnson-7100821?utm_source=webapp" opinion_id="7100821">62 Iowa, 611.

4. From what has been said, it will be seen the trial court treated both lots as one parcel of land, and in effect made the improvements on one lot a charge upon both. In this the court erred. Each lot was assessed with its own tax. The tax judgment directed a sale of each lot for the amount due thereon, and each lot was sold to pay the taxes thereon, and no part of the proceeds arising from the sale of one lot could have been applied in discharge of the judgment against the other .lot. In short the tax liens were separate and distinct liens, and hence the plaintiff had a right to redeem in parcels. Where two parcels of land have been improperly assessed and; sold as one tract, one parcel may be redeemed without redeeming the other. Dietrick v. Mason, 57 Pa. St. 40; Penn v. Clemans, 19 Iowa, 372" court="Iowa" date_filed="1865-01-06" href="https://app.midpage.ai/document/penn-v-clemans-7093357?utm_source=webapp" opinion_id="7093357">19 Iowa, 372. For a much stronger reason may the property be redeemed by parcels where it has been assessed and sold in parcels. It also follows that the improvements made upon one lot cannot be made a charge upon the other one. For the error just noted the judgment is reversed and the cause remanded.

All concur.