Henry v. Mitchell

Bates, Judge, delivered the opinion of the court. On the 15th of May, 1855, Alexander M. Mitchell, I). D. Mitchell, and Robert M. Renick, were the owners of a quarter section of land adjoining the city of St. Joseph, in Buchanan county, and laid out the same into blocks and lots, with streets and alleys intersecting and separating the same, as an addition to the city of St. Joseph, called South St. Joseph, and on that day filed in the office of the clerk of the Circuit Court of Buchanan county a plat of the same, and thus dedicated to public use the streets, alleys, and public grounds marked thereon. On the 29th April, 1857, Jaccard & Co. sued A. M. Mitchell in the St. Louis Circuit Court by attachment. The writ issued to the sheriff of St. Louis was personally served on A. M. Mitchell, and he appeared to the action and answered; and upon a counterpart to Buchanan county, the sheriff of that county attached the undivided interest of the defendant in “ the south half of” said quarter section, describing it by the number of section, township and range.' On the 2d [518] day of November, 1858, in said cause a general judgment was rendered rgainst A. M. Mitchell for six hundred and eighty-one fVV dollars, with general award of execution. A general execution was issued to St. Louis county, and returned nulla bona, and on the 7th day of July, 1859, a general execution was issued to Buchanan county, upon which was endorsed by the clerk “ sell property levied on by virtue of attachment, viz., undivided interest of Alexander M. Mitchell in and to the south half of the southeast quarter of section 17, T. 57, R. 35, containing 80 acres.” The sheriff’s return on the execution shows that he levied the execution upon a great number of lots, describing them by the numbers of the lots, and of the blocks in which they were situated, “on the south half of” said quarter section, describing it; and that he had sold them to different named persons, including certain lots sold to the plaintiff; and the sheriff made a deed to the plaintiff for the lots sold to him, dated 24th September, 1859. None of the proceedings of the sheriff under the execution refer to the levy under the attachment. The plaintiff claims title under that deed to One undivided third part of the lots described in it. On the 5th of June, 1857, D. D. Mitchell (who represented and held the interest of Renick as well as his own) and A. M. Mitchell made a partition of the lots held by them, and execitted to each other deeds, so as to vest in each the whole title to the lots conveyed, and A. M. Mitchell, by means of the deed executed by him in carrying out that partition, conveyed his interest in the lots in dispute to D. D. Mitchell. In this suitD.,D. Mitchell claims the whole title to said lots, and denies that the plaintiff has any right therein. It appeared at the trial that when the levy under the attachment was made, a number of the lots in the addition, but within the northern half of the quarter section, had been sold, and houses had been built upon some of them. It appeared, also, that a line dividing the south from the north half of the quarter section would run diagonally through a long row or tier of the lots as laid out. [519] It will be perceived from the above statement, that in order to make the plaintiff’s title good it, must date back to the levy of the attachment. The first question, therefore, to be considered, is the validity of the levy under the attachment. We have no hesitation in declaring that, under the circumstances above stated, that levy was a nullity. The levy must describe the land with as'much certainty as a sheriff’s deed. Here was a quarter section of land which had been owned by three tenants in common, who had divided it all up into blocks and lots, with streets dedicated to public use separating the blocks, and with some of the lots sold to third persons and occupied by them; and the sheriff levies upon the undivided interest of one of the tenants in common in a distinct portion of the land originally held in common, by a description only appropriate to its original state, when its state had been so changed that it was no description at all of the existing lots. The sheriff might just as well have described it as the south half of the city of St. Joseph. Other questions were discussed in the cause, but as this one finally disposes of the whole case, they will not be noticed. Judgment affirmed. Judges Bay and Dryden concur.