Wildasin v. Bare

Opinion bt Mb. Justice Dean, This suit is an ejectment against defendant for the possession of thirteen acres of land in Penn township, York county. This and a tract of eighty-five acres, described as in West Manheim township, on 25th of September, 1891, belonged to Philip Sterner; on a judgment against him, an execution went into the hands of sheriff Findley, who, by virtue' of this writ, made the following levy: “ On all the following described tract of land situate in West Manheim township, York county, Pennsylvania, containing ninety-eight acres, more or less, adjoining lands of Henry Dusman, John Brillhart, Michael Wildasin and others, and the public road leading from Hanover to Black Rock, with the improvements thereon,” having thereon a dwelling house, grist mill, orchard, etc. The property was regularly condemned, vend. ex. issued, and sold to S. M. Bare, this defendant, for $2,755; the sheriff made return of the sale, and on December 16,1891, duly acknowledged his deed to the purchaser for the land described in the levy. It appeared from the evidence, defendant at the date of the levy was the owner of two tracts, which were separated by an intervening strip of land three or four hundred yards wide, of which last he was not the owner; both tracts, however, were farmed together by him as one farm, and although conveyed to him by two deeds, both were delivered to him the same day ; three townships adjoin very near to that location, and while, as now appears, the smaller tract is in Penn township, the levy describes the ninety-eight acres as in West Manheim. Afterwards, on the 11th of January, 1892, the plaintiff in the first writ, the sale ¡thereon not having paid his judgment, issued an alias fi. fa:, ■aiid levied on the thirteen acre tract, describing it by adjoiners, and as in Penn township ; after condemnation, it was sold on a vend. ex. by the sheriff to Alfred Wildasin, the plaintiff, for two hundred and thirty dollars, and deed to him duly acknowledged. Bare, the purchaser at sheriff’s sale, having in- the [393] meantime gone into possession of both tracts, Wildasin brought this ejectment against him on his sheriff’s deed, for the smaller one. At the trial the learned judge of the court below was of opinion that although the levy was ambiguous, yet if it was actually on both tracts, and the description was intended to and did include them, the plaintiff could not recover; and whether the description did include both tracts could be answered by evidence dehors the levy, showing adjoiners, boundaries and quantity, not to contradict, but to explain the ambiguity. He therefore submitted the evidence to the jury to find whether from the description in the levy, both tracts had been seized and sold. The verdict was for defendant, the purchaser at the first sale, and plaintiff now appeals, preferring eleven assignments of error, which do not call for separate consideration. It may be admitted that neither the officer nor counsel for plaintiff in the execution, in view of the importance of having an accurate descriptive levy, performed properly the duties devolving on him. The description of defendant’s land was in his deeds, either of record or in his possession, which should have been resorted to before indorsing the levy; but this neglect, although probably the cause of this litigation, does not vitiate the sale, if the description in the levy can with reasonable certainty be fitted to the land sold. The sheriff called on the defendant in the writ and asked him for a description of his land; lie named the quantity, ninety-eight acres, which included both tracts, then gave him the ad-joiners ; the adjoiners are those of both tracts ; all of them would not adjoin the larger tract. “The public road leading from Hanover to Black Rock ” does not adjoin the large tract, while it does the small one; the lands of Dusman and Aaron Wildasin do not adjoin the ninety-eight acres, but only the eighty-five acres; those of Brilhart and Michael Wildasin adjoin both tracts ; so that description by adjoiners identifies with reasonable certainty the two tracts taken together, but does not describe either separately. In admitting evidence tending to identify both tracts as the land described in the levy, there was no contradiction of the levy as returned and made part of the record, but a mere application of it to the subject of it. That this may be done in the case of an ambiguous description [394] in a sheriff’s levy of real estate, is held in Spang v. Snyder, 10 Pa. 193 ; Erb v. Scott, 14 Pa. 20; Scheetz v. Fitzwater, 5 Pa. 126, and in many cases both before and since the decisions in these. The owner of the two tracts, the defendant in the writ, testified positively that he used both pieces as one farm, and there is no contradiction of his testimony in this particular. In Buckholder v. Sigler, 7 W. & S. 154, where the owner of a larger tract, subsequent to his first deed, purchased from other parties one acre, and the sheriff had described the land in his levy by adjoiners, with no reference to the one acre, this court held that: “As he occupied and used both parcels as one tract only, and never otherwise, .... it was unquestionably sufficient, in order to include both, for the sheriff to describe them generally as one tract of land, in the manner he has done in his levy.” That these two tracts did not actually adjoin does not change the reason of the rule for so holding; which is, land used as one farm, or for one purpose, ought to be sold as a whole unless it appear that it would sell to a better advantage when offered in parcels. Here, taking both tracts together, was a small farm of ninety-eight acres, used as one farm by the former owner, with buildings and improvements adapted to the farm; there is nothing in the evidence to show they ought to have been levied on or sold separately. The plaintiff in the writ, if the description was uncertain, should have moved the court to set aside the sale before deed acknowledged, but he made no objection, and then issued an alias writ and levied on the smaller tract; this second sale passed no title, if the tract was included in the first levy, and the jury on competent evidence have found, it was. Nor do we think the fact that the smaller tract was not in the same township as the larger affects the validity of the sale. It appears now there was a misdescription in the location by township of both tracts; the whole tract of ninety-eight acres is described as in West Manheim township, while in fact the thirteen acre tract is in Penn, and the eighty-five acre tract in Heidelberg; the three townships corner at about that point, hence the mistake. But the mistake in the name of the township it is not alleged misled the purchaser or any bidder; the error is not of that gravity which would of itself be destructive, of title. [395] Nor was the plaintiff, the purchaser at the second sale, misled. Bare, the purchaser at the first sale, gave distinct notice to all bidders at the second that the smaller tract had been purchased, and was claimed by him under the first levy. So, with his eyes open, he took the risk, and has now no ground of complaint. We are of opinion, therefore, the court below upon the special facts of this case committed no error, either in the admission of evidence tending to show the land levied on and sold to Bare included both tracts, or in submitting it to the jury to find whether the levy actually did include both. We do not intend to disturb the general rule, that a levy upon land should be fairly descriptive. The assignments of error are overruled, and the judgment is affirmed.