Thiemann v. Meier

• Decision Date: 05 April 1887
• Citation: 25 Mo.App. 306
• Parties: HENRY THIEMANN, Respondent, v. LOUISA MEIER, Appellant.
• Court: Missouri Court of Appeals

25 Mo.App. 306

HENRY THIEMANN, Respondent, v. LOUISA MEIER, Appellant.

Court of Appeals of Missouri, St. Louis.

April 5, 1887

APPEAL from the St. Louis County Circuit Court, W. W. EDWARDS Judge.

Reversed and remanded.

WM. F BROADHEAD and EBER PEACOCK, for the appellant: The judgment does not correspond with the description of the land in the complaint; the judgment is for eighty-five acres of the premises described in the complaint, but does not identify the eighty-five acres. The judgment could not be enforced because the officer could not identify and locate it without extrinsic evidence. Clark v. Gage, 19 Mich. 507; Orme v. King, 50 Ga. 524; Lamme v. Buse, 70 Mo. 465. The interest of Adolphus Meier disqualified him as a witness. Sutton v. Shipp, 65 Mo. 297; Meier v. Thiemann, 90 Mo. 433.

OPINION

LEWIS P. J.

This is an action of unlawful detainer. The complaint filed with the justice describes the land unlawfully entered upon, as the " cultivated portions" of the northeast quarter of section 14 north, range 5 east, in township 45. It was objected in the circuit court, upon the defendant's appeal, that this was an insufficient description for the purposes of the proceeding. We do not find it so. There could be no difficulty in identifying the land by that description, in order to enforce upon it a judgment and execution. A similar objection to the form of the judgment entered by the circuit court is of more serious concern. The court, sitting as a jury, finds that the " defendants are guilty of unlawful detainer as to the eighty-five acres of the premises mentioned in the plaintiff's complaint, but not guilty as to the remaining portion thereof; " whereupon it is adjudged " that the plaintiff have restitution of said eighty-five acres of the premises described as aforesaid," etc. But the complaint contains no description or specification of any parcel of eighty-five acres. It may be, that the " cultivated portions" of the one hundred and sixty acres described contained eighty-five acres, but no correspondence in description between the complaint and the judgment will ever inform us of the fact. An officer with an execution, undertaking to enforce the judgment, would never know what particular eighty-five acres were to be restored to the plaintiff. A recovery in unlawful detainer must be of land which may be identified in the complaint. Lamme v. Buse, 70 Mo. 463. This uncertainty of description is error fatal to the judgment.

The plaintiff claims under a lease from Adolphus Meier, dated October 10, 1882, for two years, and renewed for two years more in August, 1884. This is the same lease under which the present plaintiff defended in the suit of Alwina Meier against him, for rent of the same lands here in controversy. The rights of Alwina Meier are represented in this case by the present defendant. Alwina is the widow of Thomas J Meier, deceased, who owned the land in 1857, and conveyed it, by deed of trust in favor of Adolphus Meier, to secure indebtedness. In 1858, Adolphus Meier foreclosed his deed of trust and purchased the land under it. He testified, in the case of Alwina Meier v. Thiemann, and to the same effect in the present case, that, after his purchase under the deed of trust, Thomas J. Meier, his brother, occupied the land as his agent, until the death of Thomas, on March 15, 1882. This testimony was material in either case, as showing the present plaintiff's right of occupancy under his...