Crittenden v. Leitensdorfer

• Decision Date: 31 October 1864
• Parties: HIRAM CRITTENDEN, Appellant, v. THOMAS LEITENSDORFER et al., Respondents.
• Court: Missouri Supreme Court

35 Mo. 239

HIRAM CRITTENDEN, Appellant,

v.THOMAS LEITENSDORFER et al., Respondents.

Supreme Court of Missouri.

October Term, 1864.

Appeal from St. Louis Court of Common Pleas.

Knox & Kellogg, for appellant.

The appellant contends that the sheriff's deed to him vested in him all the interest that Eugene Leitensdorfer had in the property conveyed, at the time the attachments were levied. That the partition in a suit instituted March 18, 1852, was wholly inoperative so far as the appellant is concerned; that appellant's title was derived under judgments and executions in suits by attachment, suits instituted in the month of February, 1849; that the property was attached in said month of February, and that the attachments were a lien upon the property sold up to the time of the sale. The interest purchased by the appellant was an undivided interest, and no partition, in a suit instituted for partition after the property was attached, is binding upon appellant.

It is in the power of this court, in furtherance of justice, to amend the clerical error by reason of which the respondents contend that the appellant acquired no title under the sheriff's deeds in the case of Campbell v. Leitensdorfer. (R. C. 1855, pp. 1256, 1257, 1255, § 16, 19, 20, 23.)

E. Casselberry, for respondent.

Objections to first deed. The deed recites that on December 24, 1849, judgment was rendered in favor of Robert Campbell, surviving partner of William and Robert Campbell, against Eugene Leitensdorfer, Jacob Haughton, Antoine Vien, Aaron Bowers and Euphrosine Leitensdorfer, for $7,600.76. This is all wrong; the judgment was in favor of both of the Campbells against Eugene Leitensdorfer and Jacob Haughton, and no others, and judgment is for $7,676.00. The sale is under a new levy and not under the attachment; an imperfect sheriff's deed cannot be perfected by a court. (Morean v. Detchmendy, 18 Mo. 522.)

There is no such judgment as the one described in the execution attached to the deed, neither as to parties plaintiff nor defendant, nor as to amount. The amount stated is $7,600.76; it ought to have been $7,676.00. This is a fatal variance

The second claim of title is under the sheriff's deed dated April 21, 1854, under sale of April 11, 1854, recorded May 12, 1854; judgment June 10, 1850, in case of Hiram Crittenden against Eugene Leitensdorfer and Jacob Haughton, for $2,195.21. The execution was issued after three years from the time of the rendition of the judgment. The sale was under the new levy, and not on the attachment. The sheriff's deed is dated December 4, 1855, based on an execution issued on the above judgment of Crittenden against Leitensdorfer and Haughton, and recorded January 12, 1856.

There is no judgment of the kind recited in the deed; it says a judgment of June 10, 1850, in the case of Hiram Crittenden against Eugene Leitensdorfer alone; it should have been against Eugene Leitensdorfer and Jacob Haughton. The court cannot correct an imperfect sheriff's deed. (18 Mo. 522.) The space of five years had elapsed before the time of issuing the execution.

BATES, Judge, delivered the opinion of the court.

This is a suit for partition. The plaintiff claimed to represent and own the interest of Eugene Leitensdorfer, one of the sons of John Eugene Leitensdorfer, deceased, in several different tracts of land; and that the defendants, who are the widow and other children of said John Eugene, owned the other undivided interests in said tracts. The plaintiff derived his title through several sheriff's deeds, and at the trial of the case, after instructions had been given by the court, he took a non-suit, and after an ineffectual motion to set it aside, brings the case to this court.

1. The court gave an instruction as follows: “The plaintiff takes no title under the sale on the Campbell execution, for the reason that there is no such judgment as that recited in it; there is a fatal variance between the execution and the judgment.”

The Campbell execution, referred to, recited that, “Whereas, Robert Campbell, surviving partner of William and Robert Campbell, on the 24th day of December, 1849, recovered against Eugene Leitensdorfer, Jacob Haughton, Antoine Vien, Aaron Bowers, and Euphrosine Leitensdorfer, the sum of seven thousand six hundred dollars and seventy-six cents,” &c. The plaintiff gave in evidence the record of a suit of William Campbell and Robert Campbell against Eugene Leitensdorfer and one Haughton, (whose first name is written in some places Joab and in others Jacob,) by attachment, both of the defendants being non-residents and not served...