60 Ark. 487 | Ark. | 1895
(after stating the facts.) The only question for us to determine in the case is whether there was a sufficient description of the land in controversy in the sheriff’s deed, and in the proceedings upon which the same is based. The constable who levied the writ of attachment described the land in his return as follows, to-wit: “The NE. part of SE. k of SE. k of section 16, township 6 north, range 30 west, 20.36 acres ; also NE. part of SW. | of SE. k of said section, township and range, containing 2.95.”
This description was copied into the judgment of the justice, the order of sale by the clerk, in the advertisement of the sale, and in the deed by the sheriff. Did it sufficiently designate the land in controversy?
The description in the return of the officer, and in the order of sale and deed, must be sufficient to identify the land, but parol evidence is admissible for the purpose of enabling the court to understand the terms used in the description. If, after the terms used are explained, it appears that, as commonly understood, they clearly designate the property, the description is sufficient. But the parol evidence must be directed to an explanation of the terms used Jn the description. The sale cannot be supported by showing what the sheriff intended to sell, when the description of the land in the deed and in the proceedings on which the sale is based is so defective that it cannot be ascertained therefrom what land was levied upon and sold. Freeman, Ex. sec. 281; Mason v. White, 11 Barb. 187.
The return, order of sale and advertisement in this case describe the land as two tracts, one containing 20.36 acres and the other 2.95 acres. Fach tract is said to be the northeast part of a certain sixteenth part of a section. The constable in his return does not show that this was all the land owned by defendant in that section, or state any fact by which the land that he levied upon can be located. We cannot tell from the description whether the tracts levied upon are in the shape of a square, parallelogram, or in that of a triangle. We do not know from the description whether the boundaries of these tracts are straight, curvilinear, or irregular.
No explanation of the language and terms of this description would enable us to ascertain the boundaries of the land from that alone. The constable may have levied upon, and the sheriff may have intended to advertise and sell, the land in controversy, but the description in the return, order of sale, advertisement and deed is not sufficient to designate the land, or to notify the owner and public of the sale of the land, and the sale is void.
As the mistake was not only in the execution of the deed, but in the proceedings anterior to that, and upon which the sale was based, we think the court properly refused to reform the deed. The case of Steward v. Pettigrew, 28 Ark. 373, does not conflict with this ruling, for the execution debtor did not, in that case, complain of the sale, but, on the contrary, he ratified it, and for a valuable consideration agreed to correct the mistake. This fact brought that case within the rules that courts of equity follow in correcting mistakes made in the execution of voluntary conveyances and agreements. 1 Story’s Equity, p. 165-179. While one of the ordinary duties of a court of equity is to furnish relief against mistakes in the execution of voluntary agreements and conveyances, as a rule, they refuse to aid the defective execution of statutory powers; “otherwise,” as was said by Judge Story, “the whole policy of legislative enactments might be overturned.” Bright v. Boyd, 1 Story, 487; note to Bartlett v. Judd, 78 Am. Dec. 136, and authorities there collated; Mason v. White, 11 Barb. 187.
The statute required the constable, in making his return of the levy, to describe the land upon which he levied. It was also necessary that the order of sale should sufficiently describe the land ordered to be sold ; for, without this, the sherifE had no power to sell. As this was not done, and as the defective description was copied by the sheriff in his advertisement and deed, the sale and deed were void, and beyond the power of a court of equity to cure.
The decree of the circuit court is therefore affirmed.
NoTB. — See Schattler v. Cassinelli, 56 Ark. 173. (Rep.)
