Mellon v. Hammond

17 Mo. 191

Opinion

RxuAND, Judge,

delivered the opinion of the court.

1. This is an action brought by the plaintiff for a lot of ground in the city of St. Louis. To be enabled better to understand this case, the following diagram is made :

E, F, G, H, is the lot of ground belonging to James MeGunnegle, according to the deed to 'him ; being the lot sold by McKnight & Brady to Moses D. Bates, which was after-wards purchased by MeGunnegle. P, Ij K, G, is the lot conveyed by John McKnight to Thomas McKnight, according to his deed. A, B, C, D, is the stone house built by Thos. McKnight. A, L, M, D, is the lot occupied by Thos. McKnight and those claiming under him, under the purchase at sheriff’s sale by Gamble. A, I, K, L, is the lot sued for.

The plaintiff claims under the 'purchase made by Archibald Gamble at sheriff’s sale. By an examination of this plat or diagram, it will be seen that the lot of James MeGunnegle is embraced within the lines E, P, G, H, and the lot conveyed by John McKnight to Thos. McKnight'is embraced by the lines P, I, G, K — that is, the line P, G, is common to the two. It will also be seen, that the stone house built by Thomas McKnight, embraced between the line A, B, O, D, extends ovey some fifteen feet or more on the lot of Jas. MeGunnegle. This stone house covers the. front of the lot marked on the diagram A, L, M, D, being thirty feet on Main street front. The plaintiff contends that he, under his purchase, is the o-yner of the lot P. I, K, G — that is, that' he owns the fifteen feet and some inches front on Main street, south of the stone house, running back the length of the lot.

Let us now. see bow tbe plaintiff claims title. Archibald Gamble purchased at sheriff’s sale the following described lot: “All the right, title,, claim, interest, estate and property of the said Thos. McKnight in and to a lot of ground, situate, lying and being on Main street, in the city of St. Louis, containing thirty feet front, by one hundred and fifty feet in depth, (more or less,) all French measure, bounded on the west by Main street, on the north by a lot belonging to the estate of James McGunnegle, east by a lot belonging to the estate of John McKnight, and on the south by a vacant lot, together with the buildings and improvements thereon, there being a two story stone house on the same, recently erected by the said Thomas McKnight, and, as yet, unfinished.” This is the description of the lot conveyed to Gamble by the sheriff, Walker; all the subsequent deeds from Gamble down to the plaintiff, describe the same lot and refer to his purchase.

Now the sheriff did not pretend to sell by the metes and bounds described in the deed from John McKnight to Thomas ; he was not selling by a paper title, with the description thereon, but he sells ‘ ‘ all the right, title, claim, interest, estate and property which Thomas McKnight had in and to a lot of ground situated on Main street, containing thirty feet front by one hundred and fifty feet in depth, more or less, all French measure, bounded on the west by Main street, on the north by a lot belonging to the estate of James McGunnegle, east by a lot belonging to the estate of John McKnight, and on the south by a vacant lot, together with the buildings and improvements thereon, there being a two story stone house on the same, recently erected by said Thomas McKnight, and as yet unfinished.” Now this lot thus described, with the two story stone house erected by Thomas McKnight thereon, thirty feet front, was the lot sold and purchased by Gamble. Thomas McKnight had the possession of this lot; he was building on it. How he and McGunnegle arranged about the fifteen feet on Mc-Gunnegle’s lot does not appear, nor does it matter. That was the lot bought by Gamble ; that was the lot bounded north by a lot of the estate of James McGunnegle ; that was the lot, all the right, title and claim of McKnight unto which was sold. The distinguishing mark of designation on this lot, was the two story stone house, recently erected by McKnight, and not as yet finished. It was this lot and its improvements thereon which Gamble bought. There is no false demonstration in this description. The sheriff sold a lot, fronting on Main street thirty feet, bounded on the north by a lot belonging to the estate of James McGunnegle, extending one hundred and fifty feet in depth, with a two story stone house erected thereon by Thomas McKnight, not yet finished. ‘ This is the lot on the diagram A, L, M, D. It is, ás will be seen, bounded on the north by a lot of James McGunnegle. It is thirty feet front on Main street — bounded by a vacant lot on the south, and runs back one hundred and fifty feet.

There is no room here to invoke the principle decided by this court in the case of Hart and Rector — there is nothing here to exclude as a false demonstration. There is no pretence that the sheriff’s deed to Gamble was for any lot or part of a lot south of the stone house. The lot then in McKnight’s possession, on which was the two story stone house, unfinished, thirty feet in front, was the lot bought by Gamble, and has, as appears by the agreed facts in this case, remained in the possession of those claiming under Gamble’s purchase ever since.

This lot embraces no part of the ground sued for in this action. Thomas McKnight was in possession of a lot thirty feet front on Main street; he was building thereon a two story stone house, which was not then finished. North of this lot was a lot of the estate of McGunnegle; south was a vacant lot — it ran back one hundred and fifty feet, the stone house thirty feet fronting on Main street. This is represented by the lines A, L, M, D. All his right and title to this lot, thus possessed by him — thus described, was sold at sheriff’s sale, and bought by Gamble. This lot, then, does not include any part of the lot marked on the diagram A, I, K, L. From this view of the subject, the plaintiff could not recover below ; therefore there is no error in the judgment of the court below for the defendants. It will be affirmed,

the other Judges concurring.