35 N.C. 159 | N.C. | 1851
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 *116 (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,
PER CURIAM. Affirmed.
Cited: Grier v. Rhyne,
(163)