Schneiderheinze v. Berg

• Decision Date: 01 December 1916
• Docket Number: No. 17609.,17609.
• Citation: 269 Mo. 263,190 S.W. 593
• Parties: SCHNEIDERHEINZE v. BERG et al.
• Court: Missouri Supreme Court

190 S.W. 593

269 Mo. 263

SCHNEIDERHEINZE v. BERG et al.

No. 17609.

Supreme Court of Missouri, Division No. 1.

December 1, 1916.

Rehearing Denied December 20, 1916.

Appeal from Circuit Court, Warren County; James D. Barnett, Judge.

Action by Sybilla Schneiderheinze against Otto Berg and another. From judgment for defendants, plaintiff appeals. Reversed and remanded.

Muench, Walther & Muench, of St. Louis, J. H. Schaper, of Washington, Mo., H. F. Hecker, of St. Louis, and Emil Roehrig, of Warrenton, for appellant. T. W. Hukriede, of Warrenton, and Rosenberger & Dowell, of Montgomery, for respondents.

BOND, J.

I. Plaintiff, on September 6, 1911, sued defendants under section 2535 of the statutes to recover a one-half interest in 77½ acres of land in Warren county. Judgment was rendered against plaintiff, from which she prosecuted an appeal to this court.

The evidence disclosed that in the year 1862 George Berg died testate; that under paragraph 2 of his will he devised the land in controversy to his son Gottlieb Berg on condition that he should pay into the hands of the executor named in the will, within 12 months, the sum of $1,000. This money was paid by the devisee, whereupon the executor executed a deed conveying the land to him as devised in the will. This deed was duly recorded in 1863. The grantee took possession of the land as owner, and at his death, in 1909, devised the property to Gustavus Berg on condition of his paying into the estate of Gottlieb Berg the sum of $5,000. During the lifetime of Gottlieb Berg, to wit, on November 10, 1875, he and one Charles Mittler signed as sureties a promissory note payable to the plaintiff 6 months thereafter, under her maiden name of Sybilla Keuchlin; that on March 25, 1879, plaintiff brought an action against the two sureties for the amount due on said note. The summons issued in this suit bore the following return of the officer executing it:

"Served the within writ in the county of Warren, state of Mo. this the 27th day of Mch., 1879, by delivering a true copy of the same together with a copy of the within petition to the within-named Charles Mittler & by leaving a true copy of said writ at the usual place of abode of the said Gottlieb Berg with a member of his family over the age of 15 years, & on said day and in said Co. Fee $2.00

"S. B. Cook, Sheriff of Warren County."

The defendants having made default, at the next term of the court plaintiff took judgment for the amount due on said note and, thereafter, at the same term of court, without any notice to the defaulting defendants, procured the setting aside of said judgment and the rendition of a second judgment, May 9, 1879. This judgment is in the name of Sibyla Kreuchlin.

No action was taken by the plaintiff to enforce this judgment until July 3, 1888, when an execution was issued thereon, whereunder the land in controversy was sold to plaintiff and one J. C. Fisher, at and for the sum of $150, whereupon the sheriff of the county executed a deed to Sybilla Schneiderheinze (plaintiff having married in the meantime) and J. C. Fisher, dated December 3, 1888, which was duly recorded, except that the seal of the court was not affixed by the clerk to his certificate of the acknowledgment of the deed. Twenty-three years after plaintiff's obtention of this deed, the whole of which period the land was in the adverse possession of defendants or their ancestor, the present action was begun. Shortly before this suit Fisher, the cograntee in the sheriff's deed, quitclaimed his interest to defendants for $500, accompanying it with an affidavit that he owned any and all interest which plaintiff acquired under the sheriff's deed.

The evidence showed that Gottlieb Berg used the land in his lifetime as a homestead for himself and family.

II. In support of the judgment below respondent calls attention to certain subsequent variances in the spelling of plaintiff's name in the proceedings after the filing of her petition, and also to the fact that when plaintiff obtained the second judgment after the vacation of the first, no notice was given to either of the defendants, and to the language of the sheriff's return on the original summons against Gottlieb Berg.

There is no merit in any of these contentions, nor in the further claim that the record of the sheriff's deed was inadmissible (the original having been lost) because of the failure of the recorder of deeds to transcribe on his books the seal of the court to the certificate of the clerk that the deed had been duly acknowledged. This "farrago of irregularities" is unavailable as attacking the validity of the title devolved on plaintiff under her suit to recover the amount of the note, for the reason that if...