State ex rel. Hafkemeyer v. McKellop

• Decision Date: 31 March 1867
• Citation: 40 Mo. 184
• Parties: STATE OF MISSOURI TO THE USE OF FRANCIS HAFKEMEYER, Appellant, v. JOHN MCKELLOP, JOSHUA CHEEVER, WILLIAM GRAMM, EDWARD SCHLICHTING, AND EDWARD R. BATES, Respondents.
• Court: Missouri Supreme Court

40 Mo. 184

STATE OF MISSOURI TO THE USE OF FRANCIS HAFKEMEYER, Appellant,

v.JOHN MCKELLOP, JOSHUA CHEEVER, WILLIAM GRAMM, EDWARD SCHLICHTING, AND EDWARD R. BATES, Respondents.

Supreme Court of Missouri.

March Term, 1867.

Appeal from St. Louis Court of Common Pleas.

E. C. Kehr, and Cline & Jamison, for appellant.

I. Hafkemeyer had the right to claim the property, and the sheriff was authorized to demand the bond in question. The only person excluded from making claim to the property levied on is the defendant in the writ. Every other person having an interest in the property may claim the same.

The statute does not require the legal owner to claim the property levied on, but any person having “any interest therein” may claim the same. The term “any interest therein” is certainly sufficiently comprehensive to embrace any right, whether legal or equitable, which may be acquired to personal property. Sec. 3 says that the claimant shall describe the property and “state his interest therein;” also sec. 2 of amendatory act. Can it be said that the cestui que trust in a deed of trust to personal property has “no interest in such property?”--Act concerning duties of sheriff, &c., in the county of St. Louis, and approved March 3, 1855, and amendatory act approved March 14, 1859; also section 4 of same act.

Knox & Smith, for respondents.

WAGNER, Judge, delivered the opinion of the court.

This was an action on a bond given under the law specially applicable o St. Louis county, entitled “An act concerning the duties of sheriff and marshal in the county of St. Louis, in relation to the levy and sale of such property under execution or attachment as may be claimed by third persons.”

The petition alleged that on the 23d day of February, 1861, one Lohman was indebted to Hafkemeyer, the appellant, in the sum of three certain promissory notes, and that, for the purpose of securing the payment of the said notes, Lohman made, executed and delivered to Theodore Kroschel, as trustee, his certain deed of trust conveying personal property therein described, for the use and benefit of Hafkemeyer; that on the ninth day of October, 1861, Willim Gramm and Edward Schlichting instituted suit by attachment in the St. Louis Court of Common Pleas against said Lohman, and that under color of the writ issued therein to John H. Andrews, sheriff of St. Louis county, the property in the said deed of trust was levied upon to satisfy the same; that Kroschel, the trustee, refused to claim the same, although often requested so to do by Hafkemeyer, the beneficiary in the deed, and that thereupon the cestui que trust (Hafkemeyer)...