Henry v. Mitchell

• Decision Date: 31 July 1862
• Citation: 32 Mo. 512
• Parties: THOMAS HENRY, Plaintiff in Error, v. DAVID D. MITCHELL and ROBERT M. RENICK, Defendants in Error.
• Court: Missouri Supreme Court

32 Mo. 512

THOMAS HENRY, Plaintiff in Error,

v.DAVID D. MITCHELL and ROBERT M. RENICK, Defendants in Error.

Supreme Court of Missouri.

July Term, 1862.

Error to Buchanan Court of Common Pleas.

The facts are fully stated in the opinion.

Loan, for plaintiff in error.

I. The interest of A. M. Mitchell in the lots in controversy was liable to be seized on the attachment. (R. C. 244, § 19; Lisa v. Lindell, 21 Mo. 127; Lacky v. Seibert, 23 Mo. 93.)

In this State, the interest of a tenant in common, in any given part of the common property, is liable to be seized and sold on execution. This is an authority derived from our statute, and which is variant from the rule of the common law. If the defendant has any interest in the real estate seized on execution, however slight, it is liable to sale, (R. C. p. 470, 753, § 17, 73,) and there is no provision protecting the interests of co-tenants. These estates are held subject to the incidents the law attaches to them--like a partnership, where the goods of the firm are subject to be seized and sold on an execution against one member of the firm, and where it is the duty of the sheriff to divest the other partners of the possession of their goods, and deliver them to the purchasers thereof. (Wiles v. Maddox, 26 Mo. 77.) So tenants in common hold their common property subject to a sale of a cotenant's interest in any and every part thereof.

II. The levy of the attachment is sufficient.

Although a plat of South St. Joseph was filed in May, 1855, showing that the whole quarter section had been laid off into lots; yet, in point of fact, the south half of the quarter had been kept enclosed with a fence, and was not staked off into lots until about the time the attachment was levied on the same. Under such circumstances, the levying the attachment on A. M. Mitchell's undivided interest in the south half of said quarter section of land is sufficiently specific, and is good. (Rector v. Hart, 8 Mo. 448; Lisa v. Lindell, 21 Mo. 127; Scott et al. v. Hammond, 12 Mo. 8.)

III. The levy of the execution was sufficient.

The judgment in favor of Jaccard was a general one, and at this time it was generally known that the south half of said quarter section had been laid out in lots. The execution was levied upon A. M. Mitchell's interest in the lots, describing them by their numbers and blocks; and by further describing the whole as being situate upon the south half of said quarter section of land.

IV. The sale made by the sheriff is valid.

It is objected that it did not follow strictly the levy of the attachment. The tenants in common had separated the quarter section, in 1855, into two distinct and separate parcels, the north half of which was divided into many several and distinct parcels, by laying it out into town lots, in each of which the tenants in common owned an equal individual interest. The south half remained as the whole quarter had been previously held. On this the attachment was levied to the extent of A. M. Mitchell's interest therein. About the time of this levy, and before a judgment was obtained against A. M. M., the tenants in common laid out the south half of said quarter section into town lots. By this act of separation or division into lots the tenants became seized of an equal undivided interest in each of said lots. At the time of levying the execution this subdivision into lots was generally known and recognized. The execution was levied upon A. M. Mitchell's interest in each of said lots, and described them in the aggregate as the south half of said quarter section of land, and advertised them accordingly and under the law.

It was the duty of the officer to sell them separately. A sale of A. M. Mitchell's interest in all the lots in the aggregate would have been irregular, and would have been set aside on motion. The sheriff could sell no more of Mitchell's property than was necessary to satisfy the execution.

V. The sheriff's deed conveyed to the purchaser all the interest that Mitchell had to the lots at the time the attachment was levied.

Under the rules of the common law, it has been decided that such a sale and conveyance would vest the property in the purchaser as between him and the execution defendant. (Bartlett v. Harlow, 12 Mass. 358.)

It was a title he was allowed to assert in a partition suit against the co-tenants of the defendant in the execution.

VI. It is assumed that under our law, that every one who must be made a party to a partition suit, under the 3d and 4th sections, p. 1111, R. C., may institute and prosecute such suit, &c. If this be true, it follows conclusively as a consequence, that if plaintiff acquired A. M. Mitchell's interest in the lots in contest, by and under the sheriff's deed, (and the court found that he did,) that he is entitled to have partition of the same.

He is entitled to have partition of the lots under the rule of the common law, which it is contended authorizes the sale of the co-tenant's whole interest, or a part of his interest, in the whole.

By the division of the land into lots, by the consent of all the tenants in common, they thereby became tenants in common of the several lots into which the land had been divided; and the whole interest therein of each of said tenants was liable to sale on execution, or either of the tenants might have partition of one or more of said lots. (Smith v. Swearingen, 26 Mo. 557.)

Hall and Vories, for defendants in error.

I. The levy of the attachment upon the south half of said quarter section of land after the same had been divided into lots, blocks, streets and alleys, and a plat thereof had been acknowledged and recorded, was a nullity. Not only had said land been so divided at the time of said levy, but the evidence shows that the line dividing the north half and south half of said land runs diagonally through a portion of the lots laid off in the same. (Evans v. Ashley, 8 Mo. 185; R. C. 1855, § 22, chap. 12, act concerning attachments.)

II. The judgment in the case of Jaccard & Co. was a general judgment. The execution conformed to the judgment. The sheriff, therefore, was not bound to follow the attachment levy, and all the evidence shows that he did not do so. He levied the execution on certain specific lots, and only on a portion of the lots into which the south half of said land had been divided. The attachment was levied on the south half of said land, describing it by its numbers, and as eighty acres of land. In the sheriff's advertisement no allusion is made to the attachment, and his deed is equally silent. The sheriff sold, and he intended to sell, only such title to said lots as A. M. Mitchell had at the time of the levy of the execution. The bidders, who were aware of the attachment, may have supposed their deed would relate back to the attachment levy. But only a portion of the bidders knew of the attachment, and the result was, lots worth one hundred dollars, or more, were sold for twenty-five cents.

III. The defendant and A. M. Mitchell were tenants in common, at the time of the levy of the attachment, in all the lots, numbering several hundred, into which the whole of said quarter section had been divided. Neither of them had the right to have any particular lot partitioned. Their right was to have all of the lots partitioned. A sale by one of said tenants of his interest in any specific lot would have been void as to his co-tenants, and the sheriff could sell nothing which the tenant could not sell himself. (Bartlett v. Harlow, 12 Mass. 348; Smith v. Benson, 9 Vt. 138; Howe v. Blandon, 21 Vt. 315; 1 Greenleaf's Cruise, 402, note 1; 4 Kent's Com. 387, § 64; Blason v. Bright, 21 Pick. 283; Peabody et al. v. Minot et al., 24 Pick. 329; Baldwin v. Whiting, Spear et al., 13 Mass. 57; Starr v. Leavitt, 2 Conn. 246; Jewett's lessee v. Stockton, 3 Yerger, 492; French et al. v. Lund et al., 1 N. H. 42; Walker's American Law, p. 305; Staniford v. Fullerton, 6 Shepley, 130; 1 Hilliard on Real Prop., 593, et seq.)

IV. Under our statute the right to partition is incident to a tenancy...