Parks v. Mason, 29 N.C. 364, 7 Ired. 364 (1847)

Aug. 1847 · Supreme Court of North Carolina

29 N.C. 364, 7 Ired. 364

DOE ON DEM. OF DAVID PARKS vs. JAMES MASON.

Whors a return of a levy on land by a constable conforms, in its description, to the directions of the Act of Assembly, Rev. St. ch. 62, sec. 16, setting forth among other things that the land lies on a creek, naming it, and it appears that there are several creeks in the county of that name, it is competent for a party to an ejectment suit, brought to recover the land sold under that levy, to shew which creek was intended, when the levy was made.

The case of Smith v. Low, 2 Ired. 457, cited and approved.

Appeal from the Superior Court of Law of Mecklen-burg County, at a Special Term in November 1846, his Honor Judge Pearson presiding.

The plaintiff claimed the premises, described in the declaration, under a Sheriff’s sale, on an execution against the present defendant. The land was levied on by a constable, upon a fieri facias issued on a justice’s judgment, and he returned the levy in the following words: 11 For want of goods and chattels, levied this execution on the defendant’s land — two tracts — one adjoining the lands of William Lackey and others, and one adjoining the lands of Robert Watson’s estate and others’, and lying on the waters of Sugar Creek.” On the return of the levy, to the County Court there was an order made for execution to issue, and a venditioni exponas did issue and under it the lessor of the plaintiff became the purchaser of the last mentioned tract, namely, that on Sugar creek.

The sole question, made by the defendant on the trial, was whether the land was sufficiently described in the constable’s return. It appeared upon the evidence, that Sugar creek and its branches watered a large portion of the county of Mecklenburg, in which the land is situate: that one of the streams was called “ Big Sugar creek,” another “ Town Sugar creek,” and another “ Little Sugar creekand that they came together in the edge of South Carolina. The plaintiff, then, in order to identify the land, gave evidence, that the late Robert Watson owned a tract of land in the County of Mecklenburg, on the “ Town Sugar creek,” and did not own any other land in the county, and that the premises now sued for adjoined that tract of Watson’s, and was on that branch of Sugar creek, known as “ Town Sugar creek,” and also that it lay on the main road from Salisbury to Charlotte.

Upon that evidence, the Court held that there was not sufficient certainty in the description of the land in the levy, and non-suited the plaintiff, who thereupon appealed.

J. H. Wilson, for the plaintiff.

Alexander, for the defendant.

Ruffin, C. J.

The levy is returned, strictly in compliance with the Act of Assembly, which directs, that the constable shall set forth what lands he levied on, where situate, on what water course, and whose land it adjoins, Rev. St. c. 62, s. 16. That was done literally in this case; and looking to the return alone, there is no ambiguity in the description, nor any room to doubt, that by it the land could be identified, so that the sheriff could tell what land he was to sell, and bidders also understand what they were buying : which are the objects of the statute in requiring the particularity of description prescribed. This return must be sustained, for it follows the very words of the Act. The land is situate in Mecklenburg county, lies on Sugar creek, and adjoins the land that belonged to Robert Watson, lately deceased. It is true as was observed in Smith v. Low, 2 Ired. 458, a levy though returned in the precise words of the Act, may require extrinsic evidence to identify the land, as indeed, may be the case with the most accurate description in a deed. Here, for example, an ambiguity, not appearing on the return, was raised by evidence dehors that there were three Sugar creeks in Mecklenburg. But that cannot absolutely avoid the levy and return, which conform to the statute. It only made it necessarry, that evidence should be given, which would connect the return with one of those creeks, and make it appear on which of them the land, according to the description in the return, must lie. This' was completely done, by proving that the Watson land, which is called for in the return, lies on a particular brknch of the creek, and that1 Watson had no other land, arid that this tract in fact adjoined that one of Watson’s. How, better evidence could be given, to show on which' of the streams the land lies, or to identify the parcels levied on and sold, it is difficult to conceive.

Per Curiam. ' Judgment reversed and venire de novo,