Opinion
August Term, 1857.
A purchaser at a sheriff's sale under a venditioni expenas, is not bound to show any thing in relation to the disposition of property, which had been levied on under the previous execution.
A levy, endorsed on a justice's execution, as being made "on three tracts of land, containing three hundred acres, on Caney Fork," is not sufficiently definite to comply with the requisites of the Act of Assembly.
Facts, merely collateral to the description contained in a levy endorsed on a justice's execution, cannot be adduced to extend, or help out, an insufficient description of the land levied on.
ACTION of EJECTMENT, tried before MANLY, J., at the Fall Term, 1855, of Macon Superior Court.
The lessor of the plaintiff claimed title through a person by the name of Leonard Higdon, and showed a regular conveyance from him.
The defendant claimed the same land by virtue of a sheriff's sale, under a venditioni exponas, founded on certain levies, made by a constable under justices' judgments and executions. A judgment had been rendered against Leonard Higdon and William Higdon, by a justice of the peace, upon which an execution issued, on which was entered the following levy, viz: "Levied this execution on twenty head of hogs, and ten head of sheep, and all of L. Higdon's standing crop of corn, wheat, and rye, and three tracts of land, containing three hundred and sixty acres, on Caney Fork." A venditioni issued from the County Court, for the sale "of three hundred and sixty acres of land, in three tracts, lying on Caney Fork, taken as the property of Leonard Higdon and William Higdon." The land in question, was sold by the sheriff to one Allison, who conveyed the same to the defendant. The defendant proved that the personal property, levied on, was sold prior to the order of court for the writ of venditioni exponas; but how the money was applied, did not appear. This evidence was objected to, but received by the Court, to which plaintiff excepted.
In aid, and in explanation of the above description of the land, witnesses were introduced, who stated that one of the tracts, levied on, was well known in the neighborhood as the property of Leonard Higdon, and was his residence; that it was on the waters of Caney Fork, and that said Higdon had no other land in the county; that there was no person's land adjoining it, except a large grant to a speculating company, unknown to the witnesses; and that the land would be as well known by the description in the levy, as by any other, and as well known as if described according to the requisitions of the statute. The same witnesses proved that Caney Fork was a creek some fifteen miles long; that there were two persons settled near the land in question, but not on adjoining tracts, and that a smaller creek, a tributary of Caney Fork, ran through the land.
The plaintiff contended that the evidence offered to show that the land was as well known by the description adopted, as it would be by that required by the statute, was insufficient in law to establish the point, and he objected to it also, as being the opinion of witnesses, not supported by facts.
The plaintiff, also contended, that the orders of sale, by the County Court, were not valid, because it did not appear, by the return of the officer, what had been done with the personality levied on.
The Court left the point of the sufficiency of the proofs to identify the land to the jury, as a question of fact, in connexion with the levy above set out. He read this description to the jury, and then informed them what the statute required, and directed them to inquire whether this description "is as certain (i. e. locates the land as definitely) as that required by the statute would be."
His Honor, charged that the objection to the validity of the venditioni exponas, was not sustainable. Plaintiff excepted to the charge.
Verdict for the defendant. Judgment; and appeal by the plaintiff.
Baxter, for the plaintiff.
N.W. Woodfin, and Gaither, for defendant.
The levy, (supposing it to be sufficient), and return of the executions, gave the County Court jurisdiction, so as to make applicable, the rule, omnia presumuntur rite esse acta, in favor of a third person, who is a purchaser under the sheriff's sale. The venditioni exponas, gave the sheriff power to sell. If the sale, made under it, could be treated as a nullity, by reason of a supposed irregularity in not setting out, either upon the record of the County Court, or in the venditioni exponas, what disposition had been made of the personal property levied on, all prudent persons would be deterred from bidding for land at sheriff's sale. Accordingly, it is established, by several decisions of this Court, to be against public policy to require persons, who are not parties to the proceedings, to see, at their peril, that all the preliminary proceedings have been taken, and duly set out; such as notice to the debtor — advertisement by the sheriff — a regular postponement of the sale, where it is made on any day of the return term other than Monday — that the debtor had no goods and chattels, or that the goods and chattels, levied on, had been otherwise duly disposed of. Jones v. Austin, 10 Ire. Rep. 20; Reid v. Largent, ante, 454.
In regard to the sufficiency of the description of the land, set out in the levy, we do not concur in the view, taken by his Honor. The statute requires that the levy should specify the land, "where situate — on what water course, and whose land adjoins." Huggins v. Ketchum, 4 Dev. and Bat. Rep. 414; Smith v. Low, 2 Ire. Rep. 457, and other cases, decide that the precise mode of description, used in the statute, need not be pursued, but that any other mode of description will answer, provided the land is as clearly identified by it, as it would be if the description required by the statute, had been given; for instance, the debtor's home place, or Lynn place. This departure is permitted, on the ground, that the object of the statute, in requiring a description, being to inform the sheriff what land he was to sell, and to enable bidders, and other persons, to know what land was offered for sale, may be as well effected by other modes of description, as that indicated in the statute; and, consequently, another mode of description will suffice, provided the land is thereby as well identified.
The description, made in the levy in this case is, "three tracts of land, taken as the property of Leonard and William Higdon, on Caney Fork, containing three hundred and sixty acres." This description is as vague and indefinite as could well be; it describes no specific land — does not even say whether the three tracts are in detached parcels, or adjoin each other — or how much each contains. Several witnesses swear, that one of the tracts was well known in the neighborhood, as the property of Leonard Higdon — was his residence, and that he owned no other land in the county, and they conclude, "that the land would be as well known by the description in the levies, as by any other, and as well known as if described according to the requisitions of the statute." This conclusion could not be established by the oath of fifty witnesses; for the simple reason, that it is impossible for it to be true.
The witnesses, and his Honor, in the Court below, fell into error by not distinguishing between that which is a part of the description, and that which is merely evidence of a collateral fact. If the description had contained these additional words, "one of the said tracts, being the residence of Leonard Higdon, and the other two tracts, adjoining the same," then the facts, stated by these witnesses, would have established the truth of the conclusion; but without this addition to the description, the fact, that Leonard Higdon resided on one of the tracts, was simply collateral, and the insufficiency of the description could be in nowise aided by it. How could that fact enable the sheriff to tell what land he was to sell, or enable bidders, or other persons, to know what land he was selling? They had to be governed by the description set out in the levy, and that, as we have seen, was too vague and indefinite to identify any land.
If, although the description in a levy is not sufficient, a sale under it can be made good by proof of facts which are not set out as a part of the description, the effect will be to defeat the operation and purposes of the statute, and allow land to be sold without the safe guards which the Legislature has provided against fraud and surprise. Philipse v. Higdon, Busb. Rep. 380.
The Court erred in leaving "the point, as to the sufficiency of the proofs to identify the land, to the jury as a question of fact," and the plaintiff was entitled to the instruction asked for, "that the evidence was, in law, insufficient to establish that point," because there was no part of the description to which the evidence was applicable. In directing the jury to inquire "whether this description is as certain, (i. e. locates the land as definitely, as that required by the statute,") his Honor, evidently, confounds the description in the levy, with the proof offered in regard to matter, to which no part of the description referred. Venire de novo.
PER CURIAM. Judgment reversed.