King v. Fink

• Decision Date: 31 January 1873
• Citation: 51 Mo. 209
• Parties: ROBERT A. KING, Respondent, v. GEORGE FINK, Appellant.
• Court: Missouri Supreme Court

51 Mo. 209

ROBERT A. KING, Respondent,

v.GEORGE FINK, Appellant.

Supreme Court of Missouri.

January Term, 1873.

Appeal from the Franklin County Circuit Court.

John R. Martin, for Appellant.

A sheriff's deed to the purchaser of land sold under execution, must contain a description of the land sold. (1 W. S., 612, § 54.) The description must be identical with that contained in the levy and advertisement. Particularly is this required, where a sheriff executes a deed for a predecessor in officer, under the statute.Henry Flanagan, for Respondent.

The deeds offered in evidence were competent. (Nelson vs. Brodhack, 44 Mo., 596; Brown vs. Brown, 45 Mo., 412; Shultz vs. Lindell, 40 Mo., 330; Webster vs. Blount, 39 Mo., 500; Gibson vs. Bogy, 28 Mo., 478; Parks vs. Watson, 29 Mo., 108.)

And it is well settled in this State, that parol evidence is admissible to indentify the premises described in a sheriff's deed, however indefinite the description might be. (Hart vs. Rector, 7 Mo., 531; Landes vs. Perkins, 12 Mo., 238; Bates vs. Bank of Missouri, 15 Mo., 309; Webster vs. Blount, 39 Mo., 500.)

EWING, Judge, delivered the opinion of the court.

This is an action of ejectment. The answer is a general denial. The petition describes the land thus: Four acres in the south-west corner of section 36, Township 43, Range 2, west, being the same land conveyed to the defendant by B. D. Terry and wife, and where the defendant resides.

The plaintiff to sustain his title read in evidence an entry from the tract book of the original entries of lands in Franklin county, in which the land is described as the east half of the north-east quarter of the section, township and range above stated, also a deed from Terry and Wife to the defendant, bearing date March 5, 1856; a deed from the sheriff of Franklin county dated April 6th, 1869 to C. B. Fallenstein and Chas. W. Gauss, and from Fallenstein & Gauss bearing date Oct. 22d, 1859, to Jas. Halligan; and a deed from Halligan to the plaintiff, bearing date May 1st, 1868. The county surveyor, a witness introduced by plaintiff, testified to the effect that the deeds of Terry to Fink, of Fallenstein and Gauss to Halligan, and of Halligan to plaintiff; did not describe the land acquired by Fink from Terry, and of which he was in possession; that Terry owned no land in the south-west quarter of section 36, that he, witness, had surveyed the land occupied by the defendant, which he claimed to have purchased from Terry, and that it was not the land described in said deeds, or in the petition; that it was only by adding certain words to the description, that it could be made to apply to the land on which the defendant lived, and which he purchased from Terry. This evidence was objected to by the defendant and its admission excepted to. Plaintiff then by leave of the court amended his petition by inserting the words “of B. D. Terry's land,” to which defendant excepted. Defendant then read in evidence the execution in favor of C. B. Fallenstein and C. W. Gauss against the defendant, issued in 1857, and the sheriff's return. This was all the evidence. The court sitting as a jury found the issues for plaintiff and gave judgment accordingly. The deed of the sheriff to Fallenstein and Gauss should have been excluded. This instrument describes somewhat indefinitely a parcel of land situated in the north-east quarter, instead of the south-west quarter of section 36, designating it as four acres in the south-west corner of B. D. Terry's land in that section 36. The land owned by Terry, as plaintiff himself had shown, was the east half of the north-east quarter of the section, and it was a part of this tract that Terry had conveyed to the defendant, Fink. The land which, as appears by the return of the sheriff, was levied...