Seibel v. Siemon

• Decision Date: 31 March 1873
• Citation: 52 Mo. 363
• Parties: CONRADE SEIBEL, Respondent, v. FERDINAND SIEMON, Appellant.
• Court: Missouri Supreme Court

52 Mo. 363

CONRADE SEIBEL, Respondent,

v.FERDINAND SIEMON, Appellant.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

Slayback & Haeussler, for Appellant.

If plaintiff has any rights by the sale, it is a legal title, and if so he must come into a court of law for relief.

Edward C. Kehr, for Respondent, cited: Deters vs. Renick, 37 Mo., 599; Otley vs. Haviland, 36 Miss., 19; Raymond vs. Ewing, 26 Ill., 343; North Presbyterian Church vs. Jevne, 32 Ill., 214; Whitenack vs. Noe, 3 Stockton, 321; Newark L. & C. Co. vs. Morrison, 2 Beasly, 133.

The court may grant any relief consistent with the case made, and the allegations of the petition. (Northcraft vs. Martin, 28 Mo., 469; Easley vs. Prewitt, 37 Mo. 361.)

VORIES, Judge, delivered the opinion of the court.

This suit was brought in the St. Louis Circuit Court by Seibel, the plaintiff, a purchaser under a judgment to enforce a mechanic's lien, against the owner of the lands upon which the erection or improvements were made, to recover the value of the improvement made, or to otherwise enforce his rights. The petition filed by plaintiff is as follows:

“Plaintiff states that by deed dated the 16th day of November, 1863, and recorded in the Recorder's office of St. Louis County, Theobald Eckerle became the owner in fee of a lot or parcel of land in the city and County of St. Louis, and State of Missouri, hereinafter specifically described, that on the same day said Eckerle and wife, by deed bearing that date, conveyed said real estate to D. Robert Barclay in trust to secure to Elihu H. Shepard or order the payment of certain promissory notes in said deed described, that among other things in said deed of trust contained it was provided, that if said notes should be paid according to their tenor or effect, then said deed should be void, but that if default were made in the payment thereof, then said deed should remain in force, and the said Barclay might proceed to sell said property in manner as said deed directs, and deliver to the purchaser thereof a deed in fee simple of the property sold.

Plaintiff states, that said Eckerle entered into possession of said premises about the time of his said purchase, and thereafter continued in the possession and actual occupancy thereof, until about the 31st day of May, 1871. That whilst so in possession of said premises as the owner thereof, said Eckerle caused a certain building 43 feet in length by 34 feet in width, and about 26 feet deep, constructed of rock and brick, and intended for an ice house, to be erected on said premises, that he commenced work on said building on or about the 1st day of October, 1870, and finished the same on or about the 8th day of January, 1871, and that between said dates, and at his instance and request, Andreas Uhri, Conrad Seibel, Theodore Bloess, Henry Hilsdorf and Clemence Knupfer, each contracting severally with said Eckerle, did work and labor upon, and furnished materials for said building, that their respective demands for the work done and the materials so furnished remaining unpaid, they did each on or about the 28th day of January, 1871, file and perfect in the Clerk's office of the Circuit Court of St. Louis County, a lien upon the above described property, in accordance with the statute in such case made and provided.

Plaintiff states, that on the 3rd day of February, 1871, the said Andreas Uhri, Conrad Seibel, Theodore Bloess, Henry J. Hilsdorf and Clemence Knupfer, did each institute suits upon his said demand and lien in the Circuit Court of St. Louis County against the said Eckerle, and the property hereinafter described, and that in said several suits such proceedings were thereafter had in said Circuit Court, that on the 18th day of May, 1871, said several plaintiffs recovered judgments against said Eckerle for the amount of their respective demands and costs, with special judgment and execution upon their said lien against the premises, hereinafter described, that said several judgments remained in full force, not in anywise vacated or reversed, and that on the 5th day of August, 1871, an execution in conformity therewith was issued on each of said judgments from the Clerk's office of the Circuit Court of St. Louis County, directed to the sheriff of said County, and returnable to the October term, 1871, of said court, that under and by virtue of said several executions, said sheriff, not being able to find any other property belonging to said Eckerle, did levy upon and seize the property charged with said several liens and in said executions described as follows, to-wit: A certain building 43 feet in length by 34 feet in width and about 26 feet deep, constructed of rock and brick, and intended for an ice house, and the ground whereon the same is situated, being the following described lot or parcel of land in the city and County of St. Louis, and State of Missouri, to-wit: Being a lot of land situated in block numbered sixty-five of the St. Louis Commons, commencing at a stone ten feet south of the orth line of said block, and twenty-five feet eastwardly from the west line of said block, thence running eastwardly parallel with the north line of said block one hundred and seventy-five feet, thence southwardly along Capital Avenue, on a line parallel with the west line of said block six hundred feet and seven inches, thence westwardly along Magazine street, in a line parallel with the north line of said block one hundred and seventy-five feet to a strip of ground twenty feet wide, to be used as an alley, thence northwardly parallel with the west line of said block and twenty feet eastwardly from it six hundred feet and ten inches to the place of beginning, being block No. 1,665 of the city of St. Louis, and having advertised the same according to law, said sheriff did on the 2nd day of September, 1871, expose said premises for sale, and the plaintiff being the highest and best bidder therefor, said property was sold to him by said sheriff, who, on the same day, executed and delivered to the plaintiff a deed for the same, which is herewith shown to the court.

And plaintiff states that previous to the date last aforesaid, to-wit: on the 31st day of May, 1871, the real estate herein before described, was exposed to sale under the deed of trust of November 16th, 1863, herein before recited, with the announcement that it was sold subject to all mechanic's liens and all taxes on the same, and that at said sale the defendant, Ferdinand Siemeir, became the purchaser thereof, subject to such liens and taxes; that he immediately thereafter entered into possession of said premises, including said...