Farrior v. . Houston

Smith, C. J., (after stating the facts). The only question presented is, whether the alleged imperfect description of the land in the levy invalidates the subsequent proceeding to sell, and renders the sale and Sheriff’s deed void. There have been numerous cases in which defects were alleged to exist in a levy upon land made under an execution from a Justice of the Peace, the imperfect description of the land being held to be too vague to warrant further proceedings for a sale. The necessity of a reasonable certainty in ascertaining and identifying it, grew out of the fact that the process, with the levy, were required to be returned to the County Court where issued and order made -to the Sheriff to sell the land so- levied on. A levy was therefore a necessity in such cases, and of course the land must be sufficiently described to enable the Sheriff, under the venditioni exponas, to know what he was to sell, and that bidders might understand what they were buying, and yet very imperfect descriptions have been upheld. Thus, a levy “ upon all the lands of the de *373 fendant lying on Queen’s creek,” was held to be fatally defective without evidence of identity, but a levy “ upon all the lands of the defendant lying on the head waters of Ketchum’s mill pond, adjoining the lands of said Ketchum,” was held to be sufficient to warrant the sale. Huggins v. Ketchum, 4 D. & B., 414. Again, in McLean v. Paul, 5 Ired., 22, Ruffin, C. J., says that a constable’s levy upon land in this form: “ This day levied on the legal and equitable interest of Abraham Paul to 450 acres of land, more or less, in Robeson County, adjoining the lands of Giles S. McLean, Dugal McCallum, John McLean and others,” is not objectionable upon its face so as not to admit of proof of identity. In Judge v. Houston, 12 Ired., 108, the Sheriff, with a writ of fieri facias in his hands, endorsed on it: “ Levied this execution upon the land of Stephen M. Houston, on the east side of North East river, adjoining the lands of Stephen M. Grady and others, and, after due advertisement, sold the land levied on,” &c. There were two tracts of land, on one of which the defendant lived, and had cultivated for several years, in turpentine; the other, which did not adjoin the first, but was two miles from it. The defendant in the action, who was defendant in the execution, objected to the levy, for its vagueness and uncertainty, and that it could not embrace the second tract, which did not touch the lands of Stephen M. Grady, as was conceded. In noting the objections, which were overruled in the Superior Court and brought up for examination by the defendant’s appeal, PeaesoN; J., uses this language: “ The defendant’s counsel did not advert to the difference between such a levy, which need not be returned, and the levy of a constable, which creates a lien, and must he returned, and must have a certain degree of particularity, so as to identify the land and enable the Sheriff to know which land to sell under the venditioni exponas, and of which, notice must be given. It is not easy to perceive,” *374 be adds, “why a levy is required when the land is sold under the ft. fa." Still less reason exists for a levy upon land under the new practice, by which, the command of the writ in the nature of a venditioni exponas is to sell, in the absence of any personal estate which can be seized by the officer, the real property belonging to the debtor when the j udgment was docketed in the county', or acquired by him thereafter. The Code, § 448, par. 1. Accordingly, in answer to an exception to the absence of any levy, this Court say: “There would seem to be'little, if any, advantage, and certainly no necessity, for making a levy on the real property of the debtor under the present system of practice, which makes a lien, &c. * * * The only effect of a previous levy is, the specific appropriation of the property on which it is made, out of other equally liable to the plaintiff’s debt, and may confer an equity on others to have the property first levied on sold and exhausted before resorting to the other real property of the debtor.” Surratt v. Crawford, 87 N. C., 372; and the proposition is reiterated in Barnes v. Hyatt, decided at the same term, and reported at page 315. All that is essential is, that the requirements of the law be observed, and that it be fully made known what property, describing it with sufficient certainty, is exposed to sale, and what the bidder, who may purchase, acquires. The Sheriff’s deed, whose recitals as to his own acts are prima facie evidence of the facts recited, expressly declaxes that the sale was made on the day and at the place specified by law,' of the lands and tenements of the said George B. Houston, levied and “ hereinafter described,” and the boundaries of each tract are definitely set out in the deed. McKee v. Lineberger, 87 N. C., 181; Miller v. Miller, 89 N. C., 402. We must, therefore, declare there is error, and reverse the judgment; - and it is so ordered. Error. Reversed.