Summary
In Parks v. Mason, 52 N.C. 362, held, the levy is good if it follows the words of the statute, "although it may require extrinsic evidence to identify it, as indeed," said Chief Justice RUFFIN, "may be the case with the most accurate description in a deed."
Summary of this case from Hilliard v. PhillipsOpinion
(August Term, 1847.)
Where a return of a levy on land by a constable conforms, in its description, to the directions of the act of Assembly, Rev. St., ch. 62, sec. 16, setting forth, among other things, that the land lies on a creek, naming it, and it appears that there are several creeks in the county of that name, it is competent for a party to an ejectment suit, brought to recover the land sold under that levy, to show which creek was intended when the levy was made.
APPEAL from MECKLENBURG Special Term in November, 1846; Pearson, J.
The plaintiff claimed the premises, described in the declaration, under a sheriff's sale on an execution against the present defendant. The land was levied on by a constable, upon a fieri facias issued on a justice's judgment, and he returned the levy in the following words: "For want of goods and chattels, levied this execution on the defendant's land — two tracts — one adjoining the lands of William Lackey and others, and one adjoining the lands of Robert Watson's estate and others, and lying on the waters of Sugar Creek." On the return of the levy to the county court there was an order made for execution to issue, and a venditioni exponas did issue, and under it the lessor (363) of the plaintiff became he purchaser of the last mentioned tract, namely, that on Sugar Creek.
The sole question made by the defendant on the trial was whether the land was sufficiently described in the constable's return. It appeared upon the evidence that Sugar Creek and its branches watered a large portion of the county of Mecklenburg, in which the land is situate, that one of the streams was called "Big Sugar Creek," another "Town Sugar Creek," and another "Little Sugar Creek"; and that they came together in the edge of South Carolina. The plaintiff, then, in order to identify the land, gave evidence that the late Robert Watson owned a tract of land in the county of Mecklenburg, on the "Town Sugar Creek," and did not own any other land in the county, and that the premises now sued for adjoined that tract of Watson's, and was on that branch of Sugar Creek known as "Town Sugar Creek," and also that it lay on the main road from Salisbury to Charlotte.
Upon that evidence, the court held that there was not sufficient certainty in the description of the land in the levy, and nonsuited the plaintiff, who thereupon appealed.
J. H. Wilson for plaintiff.
Alexander for defendant.
The levy is returned strictly in compliance with the act of Assembly which directs that the constable shall set forth what lands he levied on, where situate, on what water-course, and whose land it adjoins. Rev. Stat., ch. 62, sec. 16. That was done literally in this case; and, looking to the return alone, there is no ambiguity in the description, nor any room to doubt that by it the land could be identified so that the sheriff could tell what land he was to sell and bidders also understand what they were buying, which are the objects of the statute in requiring the particularity of description prescribed. This return must be sustained, for it follows the very words of (364) the act. The land is situate in Mecklenburg County, lies on Sugar Creek, and adjoins the land that belonged to Robert Watson, lately deceased. It is true, as was observed in Smith v. Low, 24 N.C. 458, a levy, though returned in the precise words of the act, may require extrinsic evidence to identify the land, as, indeed, may be the case with the most accurate description in a deed. Here, for example, an ambiguity not appearing on the return was raised by evidence dehors that there were three Sugar creeks in Mecklenburg. But that cannot absolutely avoid the levy and return, which conform to the statute. It only made it necessary that evidence should be given which would connect the return with one of those creeks, and make it appear on which of them the land, according to the description in the return, must lie. This was completely done by proving that the Watson land, which is called for in the return, lies on a particular branch of the creek, and that Watson had no other land, and that this tract in fact adjoined that one of Watson's How better evidence could be given to show on which of the streams the land lies, or to identify the parcels levied on and sold, it is difficult to conceive.
PER CURIAM. Reversed.
Cited: Hillard v. Phillips, 81 N.C. 105.
(365)