8 Gill 332 | Md. | 1849
delivered the opinion of this court.
It appears, by the record, that this action was brought to recover a tract of land situate in Allegany county, called “ Western Route.”
In proof of his title, the appellee offered in evidence a patent for that tract of land granted to himself. Thereupon, the defendant, to prove title out of (he plaintiff, offered in evidence"a judgment against the plaintiff, a fi. fa. issued upon that judgment, the sheriff’s return, with a schedule and appraisement, showing that he had, in obedience to the writ, seized and taken, together with other land, a tract of land called “ West Route,” and that the same was sold to M. C. Sprigg. It is then stated,, in the bill of exceptions, that the sheriff’s deed was offered in evidence, though it is not in the record.
It is supposed that the mistake which is supposed to vitiate this sale, consists in naming the tract of land “ West Route,”
We think not. A mistake in spelling the name of a tract of land, does not vitiate an instrument of writing, if the word mispelt resembles, in sound or sense, the right name. We are told, that if, in writing “ understood,” the letter “ s” is omitted, that does not vitiate the writing, because the meaning cannot be mistaken. In 1770, Redding’s lessee vs. McCubbin, 1 H. & McH., 368, it was decided, in the provincial court, “ that unless the variance between the description of the land in the declaration and the title paper, be material, it will not hinder the plaintiff’s recovery.” And so, in Carroll’s lessee vs. Norwood, 4 H. & McH,, 287, it was decided, by the Court of Appeals, “that between 'enlargement’ and 1 the enlargement,’ there was not such a difference that the plaintiff could not sue by the one name, and recover upon proof of title to a tract of land called, in the patent, by the other.
It is sometimes said, that it was so decided in those cases, because there were plots in them, and the plaintiffs located their lands by their patent names. This cannot be. If the plaintiff can, in his declaration claim one tract, and locate what is to be considered a different tract,, and then obtain a verdict, because of a proof of title to the latter, how is the j udgment to be rendered upon such a verdict? The judgment for the plaintiff, in all actions of ejectment, is, “that the said lessee, as aforesaid, x-ecover against the said-his term aforesaid, yet to come and unexpired, in and unto all that tract of land called—.—,” &c. Now if the land located, and that claimed in the declaration, be different tracts, what term has the plaintiff in the former, or when did the defendant admit lease, entry and ouster to that tract?
It can scarcely be maintained, that there is, between “ Western Route” and “ West Route,” & more material variance that between “enlargement” and “the enlargement.” Is the variance here a substantial variance? Can a route be a western, but not a west route? Is not the sense precisely the same, although there be some difference in the spelling? If,
The facts disclosed in this case, leave but little doubt that the land claimed in this suit, is the very land which the sheriff undertook to sell. No tract patented by the name of “ West Route,” is shown ever to have been owned by the plaintiff, or to have existence. The conclusion seems to be warranted, that the tract which, when taken up, was called by the name of “ Western Route,” was, in a later time, sometimes called west, and sometimes western route. If so, a conveyance by the name which it had acquired by reputation, would have passed the title to the patented tract, and any description in the deed by the owner, which is sufficient to pass the title, ought to be a sufficient description thereof in a sheriff’s return and conveyance.
It might have been left to the jury to say whether the land seized and sold by the sheriff, was not the same land for which the plaintiff produced a patent.
This being the opinion of a majority of the court, it is unnecessary for them to say anything of the act of Assembly of 1845, ch. 244.
JUDGMENT REVERSED, AND
PROCEDENDO AWARDED.
Dorsey, O. J., agreed with the court as to its judgment, but not for the reasons assigned in this opinion. He considered the act of 1845, ch. 244, constitutional.