Childs v. Ballou

BRAyton, J. The bill of exceptions, in form, sets forth two *544 distinct rulings of the judge who tried the cause, and in form also excepts to each. In substance, however, the rulings are the same; namely, that the levy made by the officer, and the deed tendered by him after the sale, were void. This is the substance of the ruling, though distinct reasons are given for coming to that conclusion. The first reason was, that assuming that the deed referred to in the levy could be properly imported into the officer’s- return as a description of the land levied upon, the levy and deed were void; since they described land lying partly in Massachusetts and beyond the jurisdiction of the officer, which he had no power to levy upon or sell, and to which, if he sold, he could give no title. The second reason given was, upon the assumption that the deed referred to could not be imported into the return; and that, without it the description of the premises, in both the levy and the deed tendered, was so vague, indefinite, and uncertain, that it could not be determined thereupon what was the location, quantity, or extent of the land levied on or sold; and so, both were void; and that this was not aided by the fact that the defendant had full knowledge of the deed referred to, and of its contents, and of the exact locality of the land described therein. It will not be necessary to consider how the levy may be affected by the fact that a portion of the premises was out of the officer’s jurisdiction, whether it would avoid the levy for the whole, or only pro tanto. If the levy be void in other respects, and for other reasons, a determination on this point in favor of the plaintiff would not enable him to recover. We need only determine the question, whether the levy is or is not void for uncertainty in th.e description, upon the facts as they áre assumed to have been proved at the trial. Is the description in the officer’s return of the levy in this case sufficient to point purchasers to the land advertised and sold ? The description in the levy is, “ a strip of land, lying in the town of Cumberland, commencing on the southerly side of Elias S. Ballou’s land, to land of Luke Aldrich on the north, or however the same may be bounded.” So far, it is of the most indefinite character. No person could find the premises by the *545 light of it. The land is somewhere in Cumberland. It begins somewhere on the southerly line of Ballou’s land, and extends probably to some point on land of Luke Aldrich; but where, on either line, is not fixed. How wide it is, or how bounded on either side, is wholly indeterminate. It is not stated, as is suggested in argument, that it lies upon the line of the railroad. It is claimed, however, that the levy is made sufficiently certain, by the reference therein made for a more particular description. The reference is thus made: “ It is the same lot of land which the New York and Boston Railroad Company purchased of said Elias Ballou; ” and “ said land was appraised (by certain individuals, naming them) for the parties,” “ reference being had to the aforesaid deeds and the records thereof.” It does not appear that there was any written appraisement, or any record of any such. There was no record of any such deed as is referred to. It is admitted that such a deed was executed to the railroad company by Ballou, the defendant; and he produced at the trial what purported to be a copy of it, and which he stated was a copy. By the reference in the officer’s return, this deed was to furnish to the inquirer all the necessary information. He was pointed to nothing else. To this alone he must look, to determine what was to be sold and conveyed. Had it been put upon record, so as to be accessible to all persons, it clearly would give full and ample information. The description there is full and precise. But there was no such record; and the deed was not accessible to any one who sought information; purchasers generally had no means to determine what they might bid for, more than if no reference had been made. It was a reference to what they could not see and examine. An argument addressed to the court below, and now addressed to us, on the part of the plaintiff, is, that as the defendant was the person who himself executed the deed, and therefore knew precisely what was intended to be levied on and sold and what was advertised for sale, he ought not to be permitted to aver that the description is uncertain, and that he could not determine what was to be, or what was, sold. If the question *546 of certainty concerned the defendant only, as a particular bidder or purchaser of the estate, the defence here set up might not commend itself to the consideration of the court. He certainly • could not say that he was imposed upon or deceived. But this question concerns not merely this particular defendant, and purchasers, but others — the judgment debtor, whose estate it was proposed to sell, and other judgment creditors and purchasers generally. It concerns no less than the general policy of the law in relation to sales at public auction by sheriffs and other officers, on executions for taxes and other public purposes. It is claimed by the plaintiff, that the rules applicable to the construction of deeds, inter pwrtes, are applicable to a levy and deeds by officers of the law. The cases cited below, 13 Johns. 538, 13 Ib. 97, 11 Barb. 173, distinguish between them, and hold, that a description may be sufficient, as to ordinary deeds of conveyance, which would avoid a levy or sale by a public officer; and there certainly appears to be good sense in the distinction. In the one case, the owner is acting voluntarily in disposing of his own estate. The purchaser has the means of informing himself as to what he buys; and no other persons are any way interested or affected by it. If the description in the deed when executed is not entirely clear, in order to give full effect to it the law will make every intendment in favor of the grantee; and in eases of latent ambiguity will, in many cases, admit extrinsic proof, so that, if, by any'means, it may be made certain, the deed shall be held good; and in such case the proof will be admitted whenever the<question arises. But in case of sales by officers of the law upon levy and execution, or for taxes, and at public auction, the policy of the law requires, not that there should exist the means of making certain at some time what is otherwise indefinite, but that it should exist at the time of the sale, — that it should be within the power of all those who are by the notice invited to attend the sale and become purchasers. The duty of the officer is, if he will assume to convey the estate of another person in invitum, that he shall sell under such circumstances that it may bring a fair and reasonable price, and not be liable to be sacrificed from a want of in-, formation in those who would be likely to purchase, as to what *547 in fact was offered for sale. To avoid this evil, it is not sufficient that a particular individual should know, or a particular' bidder or party to some former deed of the same land, but that every person invited to attend should have the certain means to know what is to be sold. The knowledge should be accessible to all, and at time of sale. In the case of Jackson v. De Lancy, 13 Johns. 538, the chancellor says: “ It ought to be received as a sound and settled principle, that the sheriff cannot sell any land on execution but such as the creditor can enable him to describe with reasonable certainty, so that people whom the law invites to such auction may be able to know where, and what, the property is they are about to purchase. Sales by. process of law are under the protection of the rules established for the common safety. I see no possible ground to hesitate concerning the policy or the justice of the rule.” In Jackson v. Rosevelt, 13 Johns. 97, Yates, J., who delivered the opinion of the court, says, that without some definite information as to the situation, there must generally be a sacrifice of property, either of the debtor or purchaser — in most cases the former. The officer ought to prevent such consequences. The least that can be required of him is, to locate the land so as to afford the means to the bystanders and bidders of informing themselves as to the value. In Mason v. White, 11 Barb. S. C. R. 173, the same policy of the law is recognized, (though the statute of New York requires something beyond the number of the lot to be given, if it had one,) and the court say, that the public policy requires a description by which the premises may be known and located; that all persons may bid and become purchasers on equal terms, and that it may not be left to the declaration of the officer afterwards to determine what he meant to sell. If this reference is to be treated as a reference to an unrecorded deed, the general policy of the law would require it to be rejected as insufficient. But the reference here is to a deed recorded; in effect, a reference to the record for a particular description, namely, “ to the aforesaid deeds and the records thereof.” The case of Gilman v. Thompson, 11 Verm. 643, was one involving the levy on real *548 estate. The levy was made on certain land particularly described, “ except one and a half acres thereof, sold by Tera Baker to Abel Whelden.” The question was, as to the exception ; and whether it was reasonably certain. Upon this point ' the court say, per Colamer, J., the land excepted must, primd facie, have been sold by deed; and as all deeds are here recorded, that is sufficiently certain which may be so made by record. It is sufficient, until it appears that the record still leaves it uncertain. The language of the court implies, certainly, that unless it was to be treated as a reference to the record, it was quite insufficient. The case of Jencks v. Ward & others, 4 Met. 404, which was the case of a levy, implies the same. The description was, “ a certain piece of land bought of Israel Jones, December 2, 1825.”. Wilde, J., says, “ A description by refer-v-ence to deeds on record is sufficient;” and referring to the case of Boylston v. Carver, 11 Mass. 514, in which the deed referred to was recorded, says, “whether it appeared in the levy in that case that the deed was on record is not certain from the report. But we are of opinion that if it did so appear, that there is no distinction between that case and this. The reference is to a deed in fact on record; and the principle of the decision is the same. That is certain which may be made certain.” The counsel in this case, upon diligent research, have been unable to find any case in which a reference out of the deed has been . held sufficient, where it is simply to a sale or conveyance not recorded. Looking at the general policy of the law, and regarding what is required for the protection of the rights of the judgment debtors and of the judgment creditors, it would be but a reasonable rule, that where the description is not contained in the levy itself, but certainty is to be imported into it by reference to something extrinsic, that that reference should be either to the record which is kept for the information of all persons and open at all time to all inquirers, or to facts upon the ground, capable of proof, and open to purchasers. Less than this cannot protect those rights, or furnish information to bidders sufficient to guide them in their estimate of the value of, and the price which they might reasonably pay for, the estate offered at the sale. *549 We think, therefore, that there was no error in the opinion now excepted to, but that the judge who tried the cause correctly held, that the levy was void. This being so, it follows necessarily that any deed founded thereon must also be void. Judgment for the defendant, for his costs.