Summary
In Smith v. Low, 24 N.C. 457 (1842), the property involved was described as the "Julius Coley home place," the "Leonard Greeson place, containing 400 acres, more or less," and the "Lynn Place."
Summary of this case from Maurice v. Motel Corp.Opinion
June Term, 1842.
1. The Superior Court has no right, on a trial before it, to permit a return of a constable to a county court to be amended.
2. A constable is not bound (though it is safest for him to do so) to describe the land, returned by him to the county court as levied on, precisely according to the directions of the statute (Rev. Stat., ch. 62, sec. 16). It is sufficient if he gives such a description as will distinguish and identify the land.
APPEAL from Dick, J., at March Term, 1842, of GUILFORD.
No counsel for plaintiff.
J. T. Morehead and Waddell for defendants.
This was an action of ejectment. The plaintiff claimed title under a sheriff's deed, and, in order to support his action, read in evidence two warrants against one Coley, and judgments thereon by a justice of the peace, and executions thereon dated 23 March, 1839. On 3 May, 1839, these executions were levied, and the levy indorsed on the back of each as follows, viz.: "For want of goods and chattels of the defendant, Julius Coley, I levied this execution on three tracts of land, the home place, the Lynn place, and the Leonard Greeson place, containing 400 acres, be the same more or less," which levy was signed by the constable, John (458) Rightsell. These warrants, with the judgments, executions, and levies aforesaid, were returned to the county court of Guilford at May Term, 1839. Notices in both cases were ordered to issue and did issue, returnable to August Term, 1839, of Guilford County Court, and were returned, "Made known 9 July, 1839." At August Term the cases were continued, and at November Term, 1839, orders of sale were granted in both cases, and from that term two writs of venditioni exponas were issued to the sheriff of Guilford, commanding him "to expose to public sale three tracts of land, the home, the Lynn place, and the Leonard Greeson place, containing 400 acres, the property of Julius Coley, which was levied upon by virtue of an execution at the instance of" A. B. and C. D. (mentioning the names of the plaintiffs in the warrants). Upon these writs, at February Term, 1840, the sheriff made the following return: "The within described land, after being advertised according to law, was sold at the courthouse door in the town of Greensboro on 17 February, 1840; at which time Frederick Smith became the highest bidder for the home place, at the sum of $17.25; also the Lynn tract, Frederick Smith became the highest bidder for at $27, and Eli Smith became the highest bidder for the Leonard Greeson place." The defendant objected to plaintiff's recovery, upon the ground that the levies of the justice's executions were too vague and uncertain. His Honor entertained the opinion that the objection was fatal. The plaintiff insisted that the description of the lands levied upon need not be in the precise words of the act of Assembly, and that he had a right to show as a fact (459) that the return of the levy by the constable, in the cases referred to as above, identified the lands levied upon as effectually as they would have been identified by a description conforming to that prescribed in the act; and he offered to show, by oral evidence, that there were no water-courses on either of the said tracts, except springs and the branches which run therefrom; that they were generally known in the neighborhood as "the home place," "the Lynn place," and "the Leonard Greeson place," belonging at that time to the defendant Coley; that the lands sold by the sheriff were the same as those levied on by the constable, Rightsell. The counsel, being asked by the court if he expected to show that the lands sold had a notoriety to be better known or more distinguished by those names than the other neighbors' lands, replied in the negative. Thereupon the court intimated that evidence short of that would not cure the defect in the levy.
The act of Assembly here referred to prescribes that where upon an execution from a justice no goods and chattels shall be found, or not sufficient, the officer "shall levy on the lands and tenements of such person or persons" (defendant or defendants) "and make return thereof to the justice who issued the same, setting forth in the same the money he has made of the goods and chattels and what lands and tenements he has levied on, on what watercourse, and whose land it is adjoining"; and the justice is directed to return all the papers in the case to the county court, etc. 1 Rev. Stat., ch. 62, sec. 16.
The plaintiff then moved the court that the constable, Rightsell, might be permitted to amend his return of his levies, as he was present in court. To this the defendant objected, and insisted that the warrants, judgments, executions, and returns of levies, upon their return to the county court, became records of that court, and that the Superior Court had no authority to alter or amend the records of the county court; which objection was also sustained by the court. Under an intimation of these opinions by his Honor, the plaintiff submitted to a nonsuit and appealed.
For the reasons stated in the record, the Court concurs in opinion with his Honor that there could be no alterations made in the constable's return.
But, in our judgment, it was error to reject the evidence offered by the plaintiff for the purpose of sustaining the levy of the constable and the sale by the sheriff by showing that the land was well identified by the description therein given. It has been stated by this Court, Huggins v. Ketchum, 20 N.C. 550, that the return of the levy need (460) not be in the very words of the act of 1794, though in this, as in other instances, it is safest and most proper to comply with the terms of the statute. But as the object is that the sheriff should be at no loss, when he comes to sell under the venditioni exponas, as to the land which it is his duty to offer for sale, we thought it would be sufficient if, from the description given, the sheriff, the parties, and the bidders had as correct or as sufficient means of judging as to the identity of the land levied on as if it had specified "where situate, on what water-course, and whose land adjoining." If the levy be returned precisely as presented in the act, yet it may require extrinsic evidence to identify the land and show that the land sold is that levied on. So if there be a departure from those terms of description, the onus lies on one claiming under the levy, of proving clearly, by extrinsic evidence, that the description therein given does adequately identify the land; that it does it as satisfactorily to the mind as if the statute had been literally observed. In the case cited no such evidence was given; and for that reason the case was sent back to another trial. Here the levy is on "three tracts of land, `the home place,' `the Lynn place,' and `the Leonard Greeson place,' containing 400 acres, more or less, and belonging to Julius Coley." To the judge on the bench those terms, it is true, convey no certain information of the parcels of land. Nor would a call for water-courses and adjoining lands, or even for particular corners, have had that effect by themselves. In each case proof aliunde is requisite to apply the description to a particular thing; and when so applied, the inquiry results, Does the thing answer the description so far as to satisfy a rational mind that this particular parcel of land is that meant? This extrinsic evidence may be of various kinds, as by showing that certain natural objects called for, or certain courses and distances and corners, or the lines of other tracts are known, and upon survey are found to correspond with the description in a deed or levy. So it may be by showing that the parcel of land is well known by a particular name — so well known thereby that a sheriff's return, a will, lease, or other deed, calling it by that name, would at once convey to the minds of those generally who reside in the vicinity a (461) knowledge of the parcel meant. Evidence of this latter kind, if precise and clear, is not less satisfactory than the former. The name of a place, like that of a man, may and does serve to identify it to the apprehension of more persons than a description by coterminous lands and water-courses, and with equal certainty. For example, "mount Vernon, the late residence of General Washington," is better known by that name than by a description of it, as situate on the Potomac River, and adjoining the lands of A, B, and C. Frequently, indeed, the name of a place by which it is well known to those who know it at all overrules a further and mistaken description. Proctor v. Pool, 15 N.C. 370. As a consequence, that name is a sufficient description when no other is superadded. Suppose, for instance, that the return here had described one of these tracts as "Julius Coley's Leonard Greeson place, which the said Greeson conveyed to said Coley by deed of such a date, and duly registered," and the deed was produced on the trial, and found to describe the land by metes and bounds, and witnesses also proved that the particular parcel conveyed in that deed became known and was thereafter called "Coley's Leonard Greeson place": it would seem impossible that any description could more specifically point to the particular parcel. So when witnesses state that the parcel received such a name — from any cause whatever — and it is so well known thereby that no other parcel could be mistaken for it, the same conclusion would seem to follow. It is probable that one Leonard Greeson, for instance, may have leased this land from Coley, or resided on it, or conveyed it to him, or, in some other way became so connected with it as to impart his name to a certain part of it; and if it be so, it is competent to prove the fact in this, as in every other, inquiry of parcel or not parcel. His Honor appears to have been of that opinion himself, to some extent, but to have refused the evidence offered because in strength and fullness it seemed to him insufficient to attach the names to the several tracts, inasmuch as they had not a greater notoriety by those names than "other neighbors' lands." We think (462) this standard entirely too vague and uncertain. No rule can be drawn from it. We cannot tell to what degree or extent the lands of Coley's neighbors may have received names, as distinguishing them in particular; nor is it material to the inquiry whether this tract is well known by the name it bears, that the land of another person is or is not known as well by a similar designation. Besides, this question of identity is one for the jury. If the description in the levy or deed be not so indefinite that by the help of no evidence can it be told to what subject it applies, the identity of that subject is not for the court, but for the jury to determine on the evidence; for, to use the words of my brother, who delivered the opinion of the Court in Huggins v. Ketchum, supra, the inquiry is whether "as a fact the land levied on is as effectually identified" — that is to say, can be as well known and ascertained by the description given — "as it would have been identified by a description conforming to that prescribed by the act."
PER CURIAM. Judgment reversed and new trial.
Cited: Blanchard v. Blanchard, 25 N.C. 108; Morrisey v. Love, 26 N.C. 41; Ward v. Saunders, 28 N.C. 385; Parks v. Mason, 29 N.C. 364; Jones v. Austin, 32 N.C. 21; Chasteen v. Phillips, 49 N.C. 461; Stancill v. Branch, 61 N.C. 219; Grier v. Rhyne, 67 N.C. 340; Phillips v. Holland, 78 N.C. 33; Hilliard v. Phillips, 81 N.C. 105; Farmer v. Batts, 83 N.C. 389; Thornburg v. Mastin, 88 N.C. 296; Scull v. Pruden, 92 N.C. 174; Blow v. Vaughan, 105 N.C. 210; Euliss v. McAdams, 108 N.C. 511, 512.