Caldwell v. Layton

• Decision Date: 31 March 1869
• Citation: 44 Mo. 220
• Parties: HENRY L. CALDWELL, Plaintiff in Error, v. HENRY J. LAYTON et al., Defendants in Error.
• Court: Missouri Supreme Court

44 Mo. 220

HENRY L. CALDWELL, Plaintiff in Error,

v.HENRY J. LAYTON et al., Defendants in Error.

Supreme Court of Missouri.

March Term, 1869.

Error to Second District Court.

Cissel & Noel, and Garesche & Mead, for plaintiff in error.

Robbins & Watkins, and Glover & Shepley, for defendants in error.

I. The sheriff intended to except the dower interest of Mrs. Caldwell, and nothing more.

II. Oral testimony as to declarations, actions, or omissions of the sheriff was incompetent to affect the case. (Jackson v. Croy, 12 Johns. 429; Jackson v. Vanderheyden, 17 Johns. 168.) The only remedy in such case is to make the court, by a direct and timely application, to set aside the sale and deed of the sheriff. It can not be done collaterally. (Jackson v. Sternberg, 20 Ind. 49; Snyder v. Snyder, 6 Bin. 483; Jackson v. Roberts, 7 Wend. 87; Reed v. Heirs of Austin, 9 Mo. 722.)

BLISS, Judge, delivered the opinion of the court.

This is an action for possession of a parcel of land embraced in No. 442 of Bois Brule Bottom, in Perry county, the plaintiff claiming as heir of David L. Caldwell, deceased. Layton claims only as lessee of the heirs of Alfred Paddock, who are also made parties. In 1837, dower in the real estate of said David L. Caldwell was assigned to his widow Margaret out of this tract, and in 1846 his heirs presented their petition to the proper court for partition of the land and slaves of their ancestors. The petition describes all the land of the estate, including that in No. 442; makes no mention of the dower interest or of its assignment to the widow, but, in describing those interested in the estate, mentions “Margaret Caldwell, his widow, since intermarried with James T. Hamilton.” The order of sale, the advertisement, and the sheriff's deed all describe the land in No. 442 as in the original title deed of Caldwell, and no allusion is made to any interest of the widow carved out of it; but in the report of his sale to the court, the sheriff uses this language. After describing the land by boundaries, the report adds: “Except so much of the same as was heretofore assigned to Margaret Caldwell, widow of said David L. Caldwell, as her dower interest in said tract.” Mr. Hamilton, the then husband of Margaret, bid off the land, and afterward conveyed it to Alfred Paddock. The controversy arises out of the meaning of this return, the plaintiff claiming that the reversionary interest of Caldwell's heirs in that portion of 442 assigned as dower was not sold, but expressly reserved; while the defendants claim that this was merely a reservation of the dower interest of the widow, and that everything else was sold. The courts below sustained the latter view, and gave judgment against the plaintiff.

Were we considering this report alone, there would at least be great ambiguity in the language, and we might be compelled to hold that the reversionary interest of Caldwell's heirs was expressly reserved from the sale. But if the order of sale, advertisement, and sheriff's deed are to be considered, all being parts of and a consummation of the transaction, the intention becomes...