ON MOTION BOB BEHEABING.
Smith, P. J.Our statute, sections 4645, 4646, provides that, when there shall be a judgment of dispossession given in an action for the recovery of the possession of real estate, in favor of a person having a better title thereto against the person in possession, such person may recover compensation for the improvements, provided he entered into the possession believing he had good title and made the improvements in good faith under the belief that he had good title. It has been held that the constructive notice implied from the registry of an instrument affecting the title to real estate does not preclude a recovery under the *509statute just referred to for improvements made in good faith. Hill v. Tessier, 15 Mo. App. 299; Stump v. Hornbeck, 15 Mo. App. 367; s. c., 94 Mo. 26; Henderson v. Langley, 76 Mo. 226. To bar an occupying claimant’s right to compensation for improvements, actual notice of the adverse title is necessary. Dothage v. Stuart, 35 Mo. 251; Russell v. DeFrance, 39 Mo. 506.
The North Carolina cases of Wharton v. Moore, 84 N. C. 479, and Parker v. Banks, 79 N. C. 480, are not in point, for the reason that section 481 of the act of 1871-2 of that state expressly provided that the right of an innocent defendant to recover for improvements shall not apply to any suit brought by a mortgagee against the mortgagor to recover the mortgaged premises. No such exception, as it seems, is to be found in our statute. The ruling in the cases in this state which we have cited is conclusive in us, and, if a different rule prevails in other jurisdictions, as the plaintiffs contend is shown by their citations, we can not follow it.
The trustee’s deed does not show that plaintiff gave the bond authorized by section 7079, as is stated by defendant’s counsel. It does not appear whether the grantor in the deed of' trust, or his assigns, gave such bond. It may have been one or the other. The recitals in the trustee’s deed, if admissible, do not show that the plaintiff gave the statutory bond referred to, nor can this fact be fairly inferred from the recitals. Nor do they establish any new relation between plaintiff and Northup and Pitt. If, as is virtually conceded, plaintiff held adversely to Northup and Pitt, prior to the decree in the suit for the injunction, she so continued thereafter, for it nowhere appears that plaintiff recognized the title of the latter by giving the bond. Hence it follows that the argument built upon this erroneous assumption is without force.
*510The defendant is in error in supposing, as he does, that no heed was given in the opinion to Chaffin v. Brockmeyer, 33 Mo. App. 92. A closer scrutiny will reveal the fact that it expressly recognizes the rule asserted in that case. If the deed from Quimby to plaintiff purported to convey to the latter only the equity of redemption of the former, instead of an indefeasible title in fee, or if Northup and Pitt had purchased under a decree of foreclosure of their deed of trust, to which-plaintiff was a party, it is likely the defendant’s case would come within the rule'announced in 33 Mo. App. supra; but since the title of Northup and Pitt is adverse to that of the plaintiff, that rule is inapplicable. Northup and Pitt are not in privity with the title of the plaintiff. For this reason, the attornment of defendant to them was void.
Suppose defendant had refused to attorn to Northup and Pitt, and they had sued him for the recovery of the possession before a justice of the peace, having first exhibted to him the deed under which they claim, could they have recovered? Clearly not, and for the reason that the statute requires that, upon a trial in such case, the plaintiffs must show that the party in possession leased from a party claiming title to the premises by deed, and that the plaintiff has acquired the title of the original lessor by deed or deeds regularly acknotvledged. R. S., secs. 6397, 6398, 6399. Neither the deed of trust nor the trustee’s deed to Northup and Pitt show that they have acquired the title of the plaintiff. These deeds do not place Northup and Pitt in privity with the title, of the plaintiff and consequently such action would have failed.
Would they be in any better situation if the defendant, who is the plaintiff’s tenant, should attorn to them? It must inevitably follow that they would not. If they could not recover on their title, certainly *511the defendant, by his attornment to them, could not interpose as a defense against the demand of the original lessor, that title upon which they themselves could not recover before a justice of the peace.
It is true the plaintiff and Northup and Pitt each deduce their title from Quimby — a common source; but, since such titles are independent and adverse, it is not within the jurisdiction of a justice, nor of this court, to inquire into their merits. R. S., sec. 5111; Const. Mo. sec. 12, art. 6.
We can not sustain the contention that the trustee’s sale was made pursuant to, or in consequence of, a decree in equity, as provided in section 6373, Revised Statutes. The record offered shows no more than that plaintiff filed a petition praying that Northup and Pitt be enjoined from making sale of the lot in dispute, under their deed of trust, which' was by the court denied; but we are not of the opinion that the subsequent sale, under the deed of trust, was pursuant to, or in consequence of, a decree in equity, within the meaning of the statute. The court did not order the sale, nor was it made in pursuance of any order. Whether the decree dismissing the petition would estop plaintiff from setting up the matters embraced within the issues upon which it is based, in an appropriate action to try title, or to recover the value of the improvements, is a question that does not arise in this case.
Whether plaintiff went into possession in ignorance of the deed of trust is unimportant in the determination of the decisive questions in this case, and hence the erroneous statement of that fact by us harms no one. The motion is overruled.