Crittenden v. Leitensdorfer

Bates, Judge, delivered the opinion of the court. This is a suit for partition. The plaintiff claimed to represent and own the interest of Eugene Leitensdorfer, one of the sons of John Eugene Leitensdorfer, deceased, in several different tracts of land; and that the defendants, who are the widow and other children of said John Eugene, owned the other undivided interests in said tracts. The plaintiff derived his title through several sheriff’s deeds, and at the trial of the case, after instructions had been given by the court, he took a non-suit, and after an ineffectual motion to set it aside, brings the case to this court. 1. The court gave an instruction as follows: “ The plaintiff takes no title under the sale on the Campbell execution, for the reason that there is no such judgment as that recited in it; there is a fatal variance between the execution and the judgment.” The Campbell execution, referred to, recited that, “Whereas, Robert Campbell, surviving partner of William and Robert Campbell, on the 24th day of December, 1849, recovered against Eugene Leitensdorfer, Jacob Haughton, Antoine [242] Vien, Aaron Bowers, and Euphrosine Leitensdorfer, the sum of seven thousand six hundred dollars and seventy-six cents,” &o. The plaintiff gave in evidence the record of h suit oí 'William Campbell and Robert Campbell against Eugene Lei-tensdorfer and one Haughton, (whose first name is written in some places Joab and in others Jacob,) by attachment, both of the defendants being non-residents and not served with process, and in which suit there was judgment by default on the 80th day of November, 1849, and inquiry of damages and final judgment on the 2ith of December, 1849, for seven thousand six hundred and seventy-six dollars. Afterwards, William Campbell having died, the judgment was revived on the 10th day of December, 1858. (It appears from the sheriff’s return to the attachment, that he notified the tenants and persons in possession of the real estate attached, to-wit: Thomas Leitensdorfer, Frayne Leitensdorfer, Abram Cool, and J. J. Asmuth, that he had attached the same.) Tim judgment given in evidence varies from that recited in the names of the plaintiffs, the names of the defendants, and the amount recovered; this constitutes, as the lower court decided, a fatal variance. It is impossible to identify the judgment given in evidence with that recited in the execution. 2. The plaintiff also gave in evidence a judgment in his own favor against Eugene Leitensdorfer and Haughton. This suit was begun by attachment and the same lands were attached. The defendants appeared to the action, and a general and special judgment was rendered against them on the 10th day of June, 1850. On the 10th day of March, 1854, an execution issued on that judgment, under which the plaintiff bought the lands and received a sheriff’s deed thereof. And again, on the 9th of November, 1855, another execution issued on the same judgment, and under which the plaintiff again bought the lands and received a sheriff’s deed thereof. In the mean time, in 1852, Eugene Leitensdorfer, and the other representatives of the deceased John Eugene Leitensdorfer, had made partition of their lands, and the share of said Eugene had been set off to him in severalty. [243] The court then gave the following instruction: “ The sheriff’s deeds to the plaintiff, under his judgment against Eugene Leitensdorfer and others, pass the interest which said Leitensdorfer had had in the premises sold and conveyed, but plaintiff took Leitensdorfer’s interest in the condition it was at the date of the issuing of the first execution under which the sale was made, and not in the condition it was when the writ of attachment was levied, and this for the reason that the lien of the judgment had expired when the executions (imder which the sales were made) were issued, and therefore the plaintiff is only entitled to such portions of the premises as belonged to said Leitensdorfer after the partition of the premises.” The statute enacts that liens of judgments shall commence on the day of the rendition of the judgment, and shall continue for three years ; the language applies to all judgments; no exception is made, nor reason perceived why an exception should be made in the case of a judgment in a suit commenced by attachment. The instruction was correct. 3. The defendants set up that one of the tracts of land was the separate property of the widow of Leitensdorfer. The only instructions given having reference thereto'were given at the instance of the plaintiff, and of course he does not complain of them. 4. One of the defendants set up title in himself to the lands which had been set off to Eugene Leitensdorfer, with a great many averments of matters which had nothing to do with the questions which alone could be decided in this case, and actually prayed that the plaintiff be forever enjoined from setting up any claim under his said sheriff’s deeds. It is suggested that the lower courts might save themselves much annoyance by striking from the pleadings in partition cases, the long, tedious and impertinent statements de omnibus rebus et quibusdam aliis, with which they are frequently stuffed. Judgment affirmed; Judge Bay concurs.