Summary
In Jackson v. Jackson, 35 N.C. 159, evidence was received to show what land the sheriff had actually sold, and his return of levy was admitted to contradict the description in his deed.
Summary of this case from Edwards v. TiptonOpinion
(December Term, 1851.)
1. In claiming land under an execution sale the inquiry is, Has the sheriff sold this particular land? and his return is to be taken as true until the contrary appears.
2. Where the sheriff returned, "Levied on 265 acres of land, lying, etc., whereon Iredell Jackson now lives," and in his deed conveyed two tracts, one of 100 acres and one of 165, not contiguous, but separated by another small tract, and it appeared that the defendant lived on one tract and cultivated the whole as one plantation: Held, that the levy and conveyance by the sheriff were not too indefinite nor inconsistent.
3. Held further, that in such a case parol evidence of the identity of the land was properly admissible.
APPEAL from Manly, J., at Fall Term, 1851, of SURRY.
The case is stated in the opinion delivered in this Court.
Gilmer and Miller for plaintiff.
No counsel for defendant.
In this case the lessor of the plaintiff claimed through a judgment and execution against the defendant in favor of himself. The levy on defendant's land, under which the sale was made, was as follows: "Levied on 265 acres of land lying on the Ararat River, adjoining Tyree, Glenn, and others, whereon Iredell Jackson now lives." A further return was endorsed: "Sold the same on 10 November as the property of Iredell Jackson to John H. Jackson, for $495," etc. The defendant had title to 265 acres of land by two deeds, one for 165 acres and the other for 100. These two parcels at the same point were 15 chains distant, having a parcel of 74 acres between. Defendant's (160) dwelling-house was on the parcel of 165 acres, his barn on the 74, and his cultivated fields occupied portions of the three parcels (of the 100 acres, as well as the others), and the premises had been thus occupied for more than twenty years. The sheriff's deed to the lessor of the plaintiff describes the land sold as the 165 acres, and the 100 acres, and conveys them by separate descriptions. The body of the land is on the Ararat River, adjoins the lands of Tyree, Glenn, and others, and is embraced within the plaintiff's declarations.
The tax list was introduced and the justice appointed by the county court to take it, who proved that the land was given in to him as a single parcel, and was entered on the list as 165 acres, adjoining the lands of Tyree, Glenn, and others. The return of the sale and the evidence of the tax list taken were objected to, but received by the court. There was also evidence on the part of the plaintiff that the land in question was by each proprietor, as now, cultivated as one plantation, and regarded and known in the neighborhood as one parcel only. Defendant offered in evidence the record of a former suit by action of ejectment between the parties for the premises, but the court ruled it to be inadmissible. On the part of defendant it was insisted that the sheriff could not legally sell but one parcel under his levy, viz., the 165 acres; and that if he could sell more, he could sell only 265 acres, including the parcel he levied on and the lands adjoining; that the deed for 100 acres was void, and especially that a deed for two parcels, when this levy described it only as one, was void. The court instructed the jury that the levy ought to describe with certainty the things seized for sale, so as to inform the parties and the public with precision what is to be sold for the satisfaction of the debt. If the entire body of land claimed by (161) defendant was understood to be included in the description as a single parcel, and as well known by such description as by describing the parcels by their respective boundaries, or by any other means, the levy and sale were legally sufficient to include the whole, and the sheriff's deed, notwithstanding it described the land sold as two parcels, separate from each other, would convey defendant's title to all embraced by the terms of the deed. And it was submitted as a question of fact to be inquired of by the jury, whether the description was thus comprehensive, explicit, and intelligible. Verdict for plaintiff. Defendant excepts for the admission of improper testimony, for the rejection of proper, and for error in the instructions. Rule discharged, and defendant appealed.
We concur with his Honor who tried this cause below, both in receiving the testimony objected to and in his charge to the jury. Judge v. Houston, 34 N.C. 108, is decisive upon both points. There the sheriff's return was, "Levied this execution on the land of S. M. Houston, on the east side of Northeast River, adjoining the lands of Stephen M. Grady and others, and after due advertisement sold the land levied on, etc., at which time and place Israel A. Judge became the last and highest bidder," etc. Defendant owned two tracts, designated on the trial as No. 1 and No. 2, which were two miles apart, and No. 2 did not adjoin the lands of Stephen M. Grady. Plaintiff was suffered, after objection by defendant, to prove by the officer who made the levy "that he intended to levy upon all the interest of the defendant in all the lands he had in the neighborhood, and that he sold all the lands in dispute, and which were before levied on, and were the same as those set forth in the sheriff's deed." The Court here decide that there was no error in the admission of the testimony. Pearson, J., in delivering the opinion of the (162) Court, adverts to the difference between a levy of a constable on land and that of a sheriff under a fi. fa. The levy in the case we are considering is as follows: "Levied on 265 acres of land, lying on the Ararat River, adjoining the lands of Tyree, Glenn, and others, on which Iredell Jackson lives." One hundred and sixty-five acres were owned by Jackson in one body, but not contiguous with the former, and separate from it by a portion of a 74-acre tract. In this 74-acre tract was his barn, and his cultivated grounds extended to each. The evidence objected to was to prove that Jackson, the defendant, and the preceding occupiers of the land, had cultivated and used the whole land as one body for twenty years and more. It was clearly admissible, and the sheriff was justified in selling the whole. Nor is it any objection that, in making the deed to the purchaser, he described the lands as being in two tracts; they both together made out the number of acres which, by his return, he said he had levied on, and in other respects they answered the description given. In such cases the inquiry is, Has the sheriff sold this particular land under the execution? and his return is to be taken as true until the contrary is shown. Here, there is no such attempt, aside from the separation of the two tracts, and that fact is answered by the evidence and, being a matter of fact, was properly left to the jury.
PER CURIAM. Affirmed.
Cited: Grier v. Rhyne, 67 N.C. 340; Edwards v. Tipton, 77 N.C. 224; Miller v. Miller, 89 N.C. 406.
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