Keaton v. Forrester

Bleckley, Justice. After the evidence for the plaintiff in execution was all in, the court dismissed the levy for uncertainty, the description of the property levied upon being, as entered by the officer, one-half of a certain specified lot of land, without pointing out which half, or saying whether it was a divided or an undivided half. The claim papers were more definite than the levy; they stated expressly that it was the part of the lot lying south of a certain road which was levied upon, and to which the claim was asserted. It is urged that the claim affidavit and bond aided the levy for the purposes of this case, and that the court ought to have looked to them as well as the entz-y on the fi. fa., and that the uncertainty of the levy was changed into certainty by the affidavit and [207] bond. The reason assigned by the court for dismissing the levy may be sound or unsound, but the judgment of dismissal was indubitably correct. The evidence did not show that the lot or any part of it, any half, divided or undivided, was subject. There was no evidence of title in the defendant in fi. fa., or of any possession by him at or after the rendition of judgment. The onus was not changed, and there was nothing for the jury to try. Judgment affirmed.