33 N.C. 373 | N.C. | 1850
This was an action of ejectment, in which the lessor of the plaintiff claimed title to the premises in dispute by purchase at a sheriff's sale, made under several judgments and executions tested from November, 1845, to June, 1846, of which regular transcripts were produced; and the plaintiff also produced a deed from Otlin Carr, sheriff of Wayne, which, it was alleged, conveyed to him the title to the premises. The sheriff's deed recited several executions against John Hooks and other persons, that in pursuance thereof he levied upon certain pieces(374) or parcels of land, situate, lying and being in the county of Wayne, to wit, defendant's lots at Nahunta Depot,and land adjoining Ichabod Pearson and Josiah Evans, andDaniel Hanell and others, and that he afterwards, at public auction, sold the said premises to William B. Edmundson, and the deed then, in consideration of the premises and the purchase money paid, conveyed the said pieces or parcels of land, as above described, and their appurtenances to the said William B. Edmundson in fee. The plaintiff then proved that John Hooks, the tenant in possession, had been in possession of the premises for several years prior to the sale made by the sheriff, was in possession at the time of the sale, and has continued in possession ever since. The sheriff was introduced, and proved that he levied on the lot described in the declaration (the description in the declaration corresponded substantially with that in the sheriff's deed) under the executions above referred to, and sold that identical lot on 16 November, 1846, when the lessor of the plaintiff became the purchaser, and that he intended to convey the same by his said deed.
The defendant, William Hooks, who had been admitted to defend as landlord of John Hooks, gave in evidence a deed from John Hooks (under whom the plaintiff claimed) to Wright Woodard, one of the defendants in the above executions, dated 9 May, 1844, and also a deed from the said Woodard to him, William Hooks, dated 21 November, 1846, and contended that thereby the legal title vested in him, and therefore the plaintiff could not recover. He further proved that, although the lots *273 sued for adjoined A. G. Person, they did not adjoin Daniel Hanell, but that John Hooks, one of the defendants in the executions, had land which did adjoin Person, and Daniel Hanell and others, and contended that this land, and not the lots, must be held by a proper construction of the levy (375) to have been levied on. The defendant further contended that the description of the lots in the sheriff's deed to Edmundson was entirely too vague and uncertain to operate as a conveyance of land. The defendant further proved that, at the execution sale at which Edmundson bought, the sheriff declared that he only intended to sell the interest of John Hooks, and that, therefore, no interest of Woodard could pass by the sale.
The plaintiff insisted that whatever interest John Hooks had in the premises at the time of the sale made by the sheriff, if nothing more than a naked possession, was transferred to him, and that he had a right to be put in possession of it, and that William Hooks, as landlord, could not set up any title acquired by him subsequently to the sale, in opposition to the plaintiff's title and to defeat his claim.
His Honor overruled the defendant's objections, and instructed the jury that if they believed the premises in dispute were included under the levy, and the sheriff's deed to the lessor of the plaintiff, the plaintiff was entitled to recover.
The jury found a verdict in favor of the plaintiff, and from the judgment thereon the defendant appealed. The sheriff held several executions against (376) John Hooks and others, one against John Hooks alone, and one against John Hooks and Woodard. The deed recites all of these executions: a levy upon "the defendant's lots at Nahunta Depot," a sale, and thereupon conveys "the lots levied on" to the lessor. The question is, Does this deed vest the title of the lots sued for in the lessor? We think the description too vague and uncertain, and therefore the deed passes nothing.
The execution against John Hooks and Woodard was not levied on the lots, and has no bearing on the case.
"The defendant's lots at Nahunta Depot" is the description; what it means, or whether it conveys any definite idea, was a question for the court, and ought not to have been left to the jury. It has no definite meaning. If we suppose it means lots belonging to all of the defendants, there is no subject to fit it. If we suppose it means lots belonging to John Hooks, one of the *274 defendants, still there is no subject to fit it, for, although John Hooks lived on the lots sued for, and they might have been described as "the lots on which John Hooks now lives," yet they do not answer the description supposed, for in fact they did not belong to him, as he had, some two years before, conveyed them to Woodard. The description is unmeaning, and the court should so have instructed the jury.
This defense does not at all impugn the rule that William Hooks, defending as landlord, could only make such (377) defense as was open to the tenant; because he was at liberty to say to the purchaser at the sheriff's sale, "Your deed does not cover the land."
PER CURIAM. Judgment reversed, and venire de novo.
Cited: Carson v. Ray,
