Alexander v. Miller

Wheeler, J. If the alteration in the levy was made, as there is no reason to doubt that it was, before advertisement or notice, or anything done under the levy as first made, it [897] can have worked no injury to the defendant in execution ; and it is not perceived that there is anything in the mere fact of such alteration, that should invalidate the levy. Nor is it perceived that it is any objection to the levy, as finally made, that it was at the instance of the attorney of the plaintiff in execution. (Bryan v. Bridge, 6 Tex. R. 137; Sydnor v. Roberts, 13 Id. 598, 622.) But if there was any valid objee-' tion to the levy, it was expressly waived by the defendant in execution, before the sale. It is evident from his letter of the • 6th of June, that he was fully apprised of the levy and advertisement ; and he thereby expressly ratified the levy 11 as made,” waived all legal exceptions to the proceedings under the execution, and authorized the sale of the land “ so levied upon,” &c. The alteration in the levy had been previously made ; and the defendant in execution doubtless knew how the levy then stood. It was his business to know, when he undertook to ratify the levy as made ; there was nothing to prevent his knowing ; and it would be unreasonable to suppose he did not know ; doubtless he did know the precise state of the case. Clearly his ratification of the levy was a waiver of the objection, if any valid objection to the manner in which the levy had been made, did, in fact, exist. It is objected that the defendants, when they purchased, had no notice of this letter. They, however, had notice of the levy and sale. This point was fully determined when the case was first before us. (Miller v. Alexander, 8 Tex. R. 36.) Notice of the sale was notice of the proceedings therein. The defendants had notice of the levy ; and we have heretofore decided that was, prima facie, legal and valid. (Miller v. Alexander, 13 Tex. R. 497.) There is therefore nothing in the objection of want of notice. The misdescription in the date of the entry of judgment is conclusively shown to have been a mere clerical mistake. It must have been such, because there was no such judgment rendered on the 9th, but it was on the 6th of September the judg [898] merit was rendered. The 9th was the day of the adjournment of the Court, and that accounts for the mistake. The execution describes the judgment which was rendered on the 6th, accurately in every particular, except the date of its rendition ; and that was not material, as the judgment was otherwise sufficiently identified. There could be no mistaking the judgment on which the execution issued. The only remaining objection to the judgment, which is deemed to require notice, is that now first taken in this Court, having reference to the identity of the land which was levied on and sold. It is objected that the levy and sale were of land off of the north-east corner of the Gilleland league, and not off of the tract or parcel of the league previously conveyed by Gilleland to Lewis, the defendant in execution. This objection was not taken in the Court below. There was no question then made as to the identity of the land actually sold and conveyed by the Sheriff’s deed. It has evidently always been well understood by all concerned, that it was the north" east corner of the tract conveyed to Lewis, out of the league’ and not the north-east corner of the league, that was levied on and sold. The objection now taken rests on the description in the levy and deed ; particularly the latter. On an attentive consideration of the terms of the levy and deed, we are of opinion that the objection is barely plausible, not sound. The levy is in these words : “ By virtue of the within execution I “ have levied on fourteen labors of the Gilleland league of land, “ or so much of said tract as will satisfy the within execution, “ commencing at the north-west corner.” The subsequent entry is : “ Tract to be offered to commence at the north-east “ corner thereof.” The “ tract ” evidently has reference to the “ fourteen labors off of” the league ; and the “ north-east corner thereof ” as evidently has reference to this tract, and not as is supposed, to the north-east corner of the Gilleland league. This seems plainly enough to be the meaning of the terms in which the levy is expressed. The language of the deed is as [899] little susceptible of the construction contended for. It is as follows: “ I have seized and taken of the lands and tenements “ of the said Ira R. Lewis, a certain tract or parcel of land “ lying and situate in the county of Colorado, being a part of “ the Gilleland league, and consisting of fourteen labors, which “ said tract, seized as above, commences at the north-east cor- “ ner thereof,” proceeding to describe the boundaries of the six hundred and eighty-two acres sold off the tract of fourteen labors to satisfy the execution. It is perfectly plain, that the land “seized and taken” as the property of the defendant in execution, is the “ tract or parcel ” of land which was “ a part of the Gilleland league ;” and that the “ tract or parcel,” is that which is described as “ consisting of fourteen labors;” and that when it is added, “ which said tract, seized as above, commences at the north-east corner thereof,” it means the north-east corner of the “ said tract,” of fourteen labors, as plainly as if it had been so expressed. The apparent ambiguity arises from the reference to the league, by way of description, of which this tract is a part. When duly considered, there is no real ambiguity, or difficulty as to the identity of the land levied on and sold. It is very evident from the pleadings and evidence in the case, that none of the parties concerned have been misled by any want of certainty in the levy and deed : they have never given the construction to the levy now contended for. The reference, upon a former appeal to the corner of the league, was an inadvertence. This question was not then made or considered. The description of the land is not as certain and clear as it might have been ; but it is sufficiently so to leave no room for doubt or mistake as to the land really intended. Upon the whole we are of opinion that there is no error in the judgment and it is affirmed. Judgment affirmed.