Hartt v. Leavenworth

• Decision Date: 31 July 1848
• Parties: HARTT v. LEAVENWORTH.
• Court: Missouri Supreme Court

11 Mo. 629

HARTT

v.LEAVENWORTH.

Supreme Court of Missouri.

July Term, 1848.

APPEAL FROM ST. FRANCOIS CIRCUIT COURT.

W. M. CAMPBELL, for Appellant.

1. It is substantially proved that the stove and appurtenances in controversy were the property of Henry N. Hartt, and no evidence has been given that he was ever lawfully divested of his property therein, or that Crain ever had title to, or possession of said property. 2. The sale of the property by virtue of execution against Crain, as the property of Crain, could not divest Hartt of title to the property in controversy, as he was not a party, or privy to said execution. 3. The mere fact that the stove was directed to Crain, under the circumstances, is not sufficient proof to establish a right of property in said Crain; and the marks and direction of the stove are amply accounted for by the plaintiff. 4. The defendant was notified of the right and title of Hartt to the stove before he became the purchaser, and he cannot be considered an innocent purchaser, without notice. 5. The pretended transcript of the record of the judgment against Crain, ought to have been rejected because it was garbled, imperfect and incomplete; because it was not legally certified or authenticated; because it was not relevant to the issues on trial; because no foundation was laid by proof, for such testimony, nor any proof that Crain had anything to do with the property; because such judgment against Crain was of no force against Hartt; because there was no evidence of the official character of the justices and constables whose names are mentioned in said pretended proceedings and returns; because no copies of the execution and advertisement under which said sale was made, were offered in evidence. 6. The constable by whom the pretended sale was made, under which the defendant claims, testifies that at the time of said sale, he had not given bond nor qualified as such, that he was not a constable, and of course the proceedings are void. 7. For the reasons above stated a new trial ought to have been granted.

NAPTON, J.

This was an action of detinue brought by Hartt, the appellant, to recover a cooking stove with its appurtenances. A trial was had in 1844, in Ste. Genevieve, which resulted in a verdict for the plaintiff; but the court granted a new trial. The defendant took a change of venue to St. Francois, where the case was tried by the court, without a jury, and a verdict given for the defendant.

Upon the trial, it appeared from the depositions of two witnesses, that the cooking stove belonged to the plaintiff, who resided in the city of Louisville; that his wife and child, in company with her mother, came to St. Louis in the fall of 1840, for the purpose of spending the winter with a relative named Crain, who resided in Ste. Genevieve county; that this cooking stove was sent with them, for the purpose of contributing to the comfort of Mrs. Hartt during her stay at Crain's. The house of Crain was stated to be open, and with indifferent fire-places, and the stove was so constructed as to answer the double purpose of a cooking stove and a Franklin parlor stove. The health of Mrs. Hartt was not good, and she was expected to be...