delivered the opinion of the court.
This was an action against appellant for breach of certain covenants of a lease of which it is alleged that appellant was assignee.
The petition states that plaintiffs executed and delivered to Kalb and Day a lease for certain premises in St. Louis ; that the Western White Lead Company, assignees of the lease, assigned the same to one Smith, to secure the payment of certain notes ; that the trustee, Smith, died, and the sheriff of St. Louis county was appointed to execute the trust; and, default having been made in the payment of these notes, that the sheriff did, at the request of the beneficiary, proceed to sell said leasehold estate, at the door of the court house, in St. Louis county, according to the terms of said deed, and the defendant being the highest bidder, at the price of $1,000, the same was stricken off and sold to him accordingly; that the sheriff then executed and delivered to defendant a deed of said leasehold ; that the defendant paid the consideration, accepted said deed, and soon after took possession of said estate, and regularly attorned to plaintiffs, under said original lease to said Day and Kalb, by regularly paying the rent therein reserved, in manner, form, and amount as therein provided, up to the time of the default complained of; that plaintiffs have performed all covenants of the lease on their part, but that defendant had broken certain covenants of the lease. The petition sets forth the covenants and breaches of the original lease, in separate counts, and asks judgment for rent, $1,000, for all taxes for the year 1871, and for all taxes for 1872, with a separate prayer for judgment on each count.
*142The answer denies all the material allegations of the petition.
The issues were referred to a referee, who in due time filed his report, in which he states that the only allegations of the petition not sustained by evidence are that the defendant received a deed from the sheriff, and entered into possession of the premises ; and, considering the mere payment of rent for only a portion of the term created, -without receiving any written assignment of the lease, and without having possession of the premises, not sufficient to charge the person paying rent with the liability of an assignee upon the covenants of the lease, he finds for defendant.
Exceptions were duly filed by plaintiffs, which were overruled, and judgment was entered for defendant. A motion for a new trial having been filed and overruled, on appeal to general term the judgment was reversed and the cause remanded. From this judgment of the general term the defendant appeals to this court.
On the trial before the referee it appeared that the leasehold was purchased by defendant, at the sale under the deed of trust, by James H. Britton, for $1,000 ; that defendant, when apprised of this action of his agent, paid the $1,000 to the sheriff, and that defendant also paid rent to plaintiffs, and paid back taxes due upon the property at the time of the sale.
On the hearing before the referee, plaintiffs offered in evidence a memorandum made by a deputy sheriff, at the dat.e of the sale, on the sheriff’s sale book, as follows :
"St. Louis, September 12, 1870.
“ The Western White Lead Co. to T. T. Smith, trustee of Robert H. Ober.
Deed of trust in recorder's office, book 354, p. 315
“ Sold the leasehold of real estate advertised as follows : to wit:
“A certain lot or parcel of ground situate, lying, and being in the city of St. Louis, Mo., all the lot of ground in the city of St. Louis, in block 196, beginning at a point in the *143west side of Ninth street, 77 feet to the north side of Walnut street ; thence westwardly, along the north side of Walnut street, 125 feet, more or less, etc.,
To Barton Bates, for the sum of................ $1,000.00
COSTS AND CHARGES.
Advertising in Democrat............. $55.00
Commissions....................... 20.00
Affidavit and acknowledgment......... 1.00
Deeds and stamps.................... 6.00
Services of attorneys, Harding & Crane, 25.00 107.00
Net proceeds.......................... $893.00
“ Beceivedj.St. Louis, Mo,, December 9, 1870,' of 'John McNeil, eight hundred and ninety-three dollars, in full of the net proceeds of above sale, on account of the debt represented by two notes of $1,000 each, held by' the National Bank of the State of Missouri, secured by above deed of trust.”
C. F. Burnes, Attorney of Bank.
Defendant objected to this evidence, but on what ground does not appear. It was excluded by the referee.
We think that plaintiffs were clearly entitled to this memorandum. It is true that it does not satisfy the statement, in the petition, that defendant, at the time of the sale, received a deed from the trustee, but it does not follow that it was incompetent for every purpose because it was not a deed. It was cei’tainly evidence tending to show a contract of sale. If plaintiffs could prove facts entitling them to recover in the action, they should have been allowed, if necessary, to amend their petition to make it correspond to the proof by striking nut any averments as to the actual execution and delivery of a deed. The sheriff acted in his official capacity in making this sale, and he could bind both parties by a sufficient memorandum made at the time. Tatum v. Holliday, 59 Mo.
Whether this memorandum was such an assignment *144of the lease as to make the defendant' liable as assignee on the covenants of the lease it is not necessary for us to-determine. The evidence excluded was, in our opinion, competent and material, and for this error the judgment of the Circuit Court at special term must be reversed and the. cause remanded.
The judgment of the Circuit Court at general term,, reversing the judgment of special term and remanding the-cause for a new trial, is therefore affirmed. The other-judges concur.