Carroll v. Miner

Opinion by Rice, P. J., In that portion of his charge which is the subject of the eleventh assignment of error, the learned judge below instruct^ ed the jury that the levy was upon three distinct tracts, and the case was tried upon that theory. The contention of the defendant is, that the levy, taken as a whole, and construed in the light of the extrinsic evidence as to the location and use of the buildings, was a levy upon the three contiguous lots, which, together, constituted but one property. Was there sufficient evidence to warrant the submission of this question to the jury ? The limitations in a conveyance are always matters of law. What lands are described, is often a matter of fact. The operation of the deed as to the nature of the estate is for judicial construction ; the description of the property, its extent, often is a mixed question of law and fact: Swartz v. Moore, 5 S. & R. 257. It is undoubtedly true that where the subject-matter of a grant is insufficiently described in a deed, parol evidence may be given to show precisely what was intended to be conveyed. It is said in Starkie on Evidence, 602, that in general, when there is any doubt as to the extent of the subject-matter devised by will, or demised or sold, it is a matter of extrinsic evidence to show what is included under the description as parcel of it. The same principle is ruled in Scott v. Sheakly, 3 W. 50, and Hoffman v. Danner, 14 Pa. 25. And in such case it is well decided that the question of the extent of the grant must go to the jury. . . . The authorities are equally clear that the rule which allows extrinsic evidence to — 451 — explain the extent of the subject sold, has no application where a subject-matter exists which satisfies the terms of the instrument of conveyance: Starkie on Evidence, 693; Chechester v. Oxender, 3 Taunt. 147.” Vandegrift v. Harvey, 89 Pa. 346. If the description applies with substantial accuracy to only one person or thing, evidence to show that the description was intended to apply to some other will not be admitted: 1 Gr. Ev. 290, note a (15th ed.). This latter principle would rule the question if the description of lot (2) stood by itself and there-were nothing else in the levy to explain or qualify it. Thus looking at the case we would be compelled to say that it is precisely descriptive of a-lot lying apart from lots (1) and (3), and has no elements which are descriptive of the lot in controversy ; and we all agree that the rule which permits the false parts of a description to be rejected, does not permit the court or a jury to reform a precisely descriptive and unambiguous levy and sheriff’s deed, by substituting one tract for another, upon extrinsic evidence that the sheriff intended to levy upon and sell the former, but, by mistake, described the latter. But, to determine what was embraced in a levy, all of its parts should be considered, and, if being so considered, there appears to be ambiguity, then the rule applies which permits the erroneous parts of the description to be rejected, if sufficient elements are left to identify the subject of sale. Looking at this levy as a whole we find that: First, the levy calls for three lots having certain buildings upon them. If, as the plaintiff contends, the courses and distances are to control in the location of lots (1) and (3), then these buildings are on the three contiguous lots, and none of the buildings is on any part of the lot marked on the draft as No. 2. It is argued that the mention of the buildings has no significance, because it was merely for the information of bidders. If they had simply been mentioned in the advertisement and not in the levy, there would be some force in this suggestion ; but being mentioned in the way they are in the levy, they help, and undoubtedly were intended, to identify the lots levied on. Second. The defendant in the execution owned the three contiguous lots; he did not own the lot marked on the draft as No. 2; nor was that'lot bound by the lién of the judgment'on which the sale was made—at least so the defendant offered to — 452 — prove. This fact would not by any means be conclusive, but it would be a circumstance proper for the jury’s consideration, and would add probability to the defendant’s contention. Where doubtful expressions are used, the construction should be favorable to the plaintiff to enable him to obtain payment of his debt from the property of his debtor, rather than that he should lose it: Inman v. Kutz, 10 W. 90; Heartley v. Beaum, 2 Pa. 165, 172; Wright v. Chestnut Hill Iron Co., 45 Pa., 475. Third. The three contiguous lots were not treated by the owner as distinct and separate divisions of his land, but were occupied and used as one property; or rather, to be more exact, there was evidence from which a jury would be warranted in finding this as a fact. The presumption arising from the sheriff’s duty to levy on and sell it as one property, and not to divide it. in a manner so injurious to the plaintiff and the defendant in the execution is very strong, as the cases cited later abundantly show. This presumption is strengthened by the fact shown by the return that the whole property was sold in one-lot for a gross sum. Taking the description as a whole there is a seeming contradiction when we come to apply it to the land; the question-then arises whether the levy was upon three distinct and separate lots, or upon the three contiguous lots upon which the-buildings stand, and which were owned by John Miner and. used as one property. It seems to us after a very careful examination of the cases, that this question should have been submitted to the jury: Swartz v. Moore, 5 S. & R. 256; Scott v. Sheakly, 3 W. 50; Hoffman v. Danner, 14 Pa. 29; Shoemaker v. Ballard, 15 Pa. 92; Hetherington v. Clarke, 30 Pa. 393; Susq. Boom Co. v. Finney, 58 Pa. 200-208; Lodge v. Barnett, 46 Pa. 477; Titusville Novelty Iron Works’ Appeal, 77 Pa. 103; Steigleder v. Marshall, 159 Pa. 77; Wildasin v. Bare, 171 Pa. 387. But, assuming that the levy is to be construed as a levy on three distinct tracts not contiguous, or that a jury upon the-question being submitted to them would so find, does it follow that the boundaries of lots (1) and (3) are to be ascertained solely by the courses and distances and calls for adjoiners, without reference to the buildings and other natural objects called for in the levy as being on them ? Take lot (3). There — 453 — is no dispute as to the location and course of the front and rear lines, or as to the location, course and length of the northern side line. It is conceded that they are correctly described in the levy, and the call for buildings is entirely consistent with the calls by which these lines are located. Therefore, there is no room for doubt as to the identity of the lot intended to be levied on, as there may be in the case of lot (2). But, if the courses and distances are to control in the location of the southern side line of the lot, it would divide the building and leave one half or two thirds of the part used as a liquor store upon the lot in controversy. Adhering strictly to the theory upon which the case was submitted to the jury, the levy included land which the defendant in the execution had conveyed away before the lien of the judgment attached, and excluded a part of the very land upon which the buildings stood, and which undeniably belonged to him. Such a levy would be contrary to the provisions of the act of June 16, 1836 (P. L. 769) and whilst it is not contended that the title of a purchaser after acknowledgment and delivery of the deed would be invalidated by the sheriff’s disregard of the statutory provision, (see Carpenter v. Cameron, 7 W. 51; McCormick v. Harvey, 9 W. 482,) yet any investigation of what was embraced in the levy ought to be entered upon with the prima facie presumption that the sheriff intended to obey the law: Lodge v. Barnett, 46 Pa. 477; Buchholder v. Sigler, 7 W. & S. 154; Wildasin v. Bare, 171 Pa. 387. In Wright v. Chestnut Hill Iron Co., 45 Pa. 475, Justice Thompson said: “For it is the requirement of the law, that if any part of an entire establishment, such as a mill or foundry, or a furnace establishment be seized in execution, the whole must be sold. If the descriptive parts of the levy omit anything which is parcel of the whole we must look to the entire levy to see what was intended to be seized.” The same principle is applicable in a levy and sale of a dwelling house or a store. The sheriff has no greater warrant of law in such a case than in the case cited to divide the building by an arbitrary line running through it, so that to give possession of the land sold would result in the destruction of that which, perhaps, gave it its chief value. It is a familiar principle that where the description in a deed is true in part, but not true in every particular, so much of it as is false is — 454 — rejected and the instrument will take effect if a sufficient description remains to ascertain its application: 1 Gr. Ev. sec. 301. What is most material and most certain in a description shall prevail over that which is less material and less certain: Wright v. Iron Co., supra. The object in cases of this kind is to ascertain the intent of the parties, and the rule to find the intent is to give most effect to those things about which men are least liable to mistake. Hence regard is paid to monuments, natural or artificial. Mistakes may be made in quantity, in the course and length of lines, and even in the location of deed lines of adjoiners not marked on the ground; but a building such as is described here is a thing about which there can be no mistake. There could be no more certain evidence of the scope of the levy if the intent of the parties concerned is to be considered. These rules for ascertaining the intent apply to official as well as private conveyances. “ In the case of descriptive errors, where no one'is shown to be injured thereby, the rules of construction applicable to deeds inter partes apply also to sheriff’s sales: ” Middleton v. Middleton, 106 Pa. 252, citing White v. Luning, 93 U. S. 514; 23 L. Ed. 938. In the case at bar the plaintiff had actual notice of the defendant’s title under the first sheriff’s sale, and therefore stands in place of the defendant in the execution. The defendant gave some evidence, tending to show, and offered explicitly to show, that the dwelling house and liquor store mentioned in the levy are upon one foundation, cover . one cellar, and are under one and the same roof, and that the two constitute but one building. We think the-evidence embraced in this offer should have been admitted. Assuming the facts to be as claimed, and presuming, as we may, that the sheriff intended to do his duty, what more certain evidence could there be of the intent of the sheriff to levy on and sell all the land actually covered by that building? And what more certain evidence could there be of the understanding of the parties to the writ and of bidders ? What is to prevent this common intent and understanding from being carried out ?' In his answer to the plaintiff’s fourth point the learned judge said: “ If you find that there was any portion of the store or of the barn that is off from the .land as described by courses and distances, you will be governed by the courses and dis — 455 — tances. ” Practically that instruction amounted to this, that in locating lot (3) the jury must stop at a point 33| ft. from the corner of John Miner, Sr.’s lot, and'that if a line projected from that point would cut directly through the liquor store it would make no difference. The same idea was conveyed in other portions of the charge. We think this was error. The courses and distances in a deed always give way to the boundaries found on the ground or supplied by proof of their former existence when the marks or monuments are gone: Lodge v. Barnett, 46 Pa. 417; Morse v. Rollins, 121 Pa. 537. Even calls for adjoining tracts sometimes give way to monuments and marks upon the ground. A marked line is a very common monument, and when well established will prevail over a call for an adjoiner. A large number of cases will be found collected in Craft v. Yeaney, 66 Pa. 210, and Burkholder v. Markley, 98 Pa. 37, and in a valuable note to Dogan v. Skeeright, 4 Sharswood’s and Budd’s L. C. of Real Prop. 359. What is true of such a monument is true of any other agreed upon by the parties, called for in the deed, and equaUy well established. The cases show that a monument may be any object, natural or artificial, set up or adopted by the parties to identify the subject of the grant, or to define its boundaries. Usually, but not always (as is shown in the class of cases to which Burkholder v. Markley belongs), it is referred to in the deed or other instrument, and in such a way as to indicate its purpose; and whether referred to as a boundary, or as apoint from which the boundary is to be ascertained, or as on the land or as included within its boundaries, it is evidence of very high value of the intent, which is always the thing sought to be ascertained. What then is there in the call for adjoiners which is of 'higher value, or which more certainly points to the intent? The language of the levy as to the line we are now considering is “thence by lands of formerly C. Cronin.” The lot in controversy formerly belonged to C. Cronin, and, in the absence of anything to qualify it,"the language used would imply that the northerly side line was the line called for: Koch v. Dunkel, 90 Pa. 264, 268. This would result, not from an unbending and unvarying rule of law, but from a rule of construction which must yield to the actual intent where it — 456 — clearly appears. Before rejecting any part of a description the effort should be to harmonize the different parts. The description of this line would be literally accurate even if it be held that it should be so run as to include all the land actually covered by the building. But we are not disposed to rule the question on what may seem to be a quibble as to the meaning of the language of the call. Let us suppose that the northerly side line of the Cronin lot was called for. It was not marked or indicated in any way on the ground. The owner of the land disregarded it in building. It was not a division of his property which he had made or recognized. It was not the line of the lot upon which the building stood. To what then is the discrepancy between the two elements in the description to be attributed; to the sheriff’s mistake as to the actual location of the line of what was formerly the Cronin lot, or to an intention to disregard his duty to the injury of the defendant? “If therefore we find that he (the sheriff) had followed the owner’s interests in the main and substantial parts of his description, but had deviated in a minor particular only, we are to attribute that to a mistake rather than to an intention to injure, if the evidence applying the description to the ground leads to that conclusion. It is well settled that you may not change or alter the levy by parol evidence, but you may show in its application to the subject-matter it is incorrect; and if without the erroneous part of the description it has sufficient elements left to identify the subject of sale, it is sufficient: ” Lodge v. Barnett, 46 Pa. 477. Unless we are obliged to reject the reference to the building, and are required to say that it was not intended to identify and describe the lot; nothing can be clearer than that his intent was to levy on and sell all the land upon which the building actually stands. Whether more than that would pass as appurtenant to it, is another question. But it cannot be held that less than that would pass, without holding that the sheriff proceeded in reckless disregard of his sworn duty and of the rights of the defendant in the execution. Not only the prima facie legal presumption that he intended to obey the law, but the inference fairly to be drawn from the levy taken as a whole, forbids sucha conclusion. The calls of lots (1) and (3) may show an intent to exclude from the levy the land lying — 457 — between the buildings, but are not so definite, unequivocal, and conclusive as to require this one line to be so run as to exclude part of the very land upon which the dwelling house and liquor store stand. A question of location or the application of a grant to its proper subject-matter is a question of fact to be determined by the jury by the aid of extrinsic evidence. Steigleder v. Marshall, 159 Pa. 77. Especially is this true in the case of a sheriff’s levy. “ The question is, what limits the officer had in his eye at the time of the levy, and what proportion of the land he actually levied upon: ” Hoffman v. Danner, 14 Pa. 25. Under the testimony in this case this question was partly one of fact, and was for the jury. It was submitted to the jury, but with instructions which deprived them of the benefit of very important evidence in determining it. Under the circumstances of this case the building is to be treated as a monument, and, therefore, as part of the description of the lot upon which it stands. In locating the only line of that lot which is really in dispute it is very high evidence of the scope and intent of the levy. There was evidence from which the jury would have been warranted in locating that line so as to include at least, all of the land upon which the building actually stands. They should have been permitted to do so, although it might give the lot a greater width than the courses and distances mentioned in the description, or might carry it beyond the original line of the Cronin lot. We have not separately discussed the question as to the location of the lot, (1), because it is not clear that any portion of the barn is on the lot in dispute. For the reason stated we are of opinion that the court tried the case upon a wrong theory as to the buildings as evidence of the extent of the levy, and that the instructions embraced in the 11th, 15th, 17th, 18th, 20th and 21st assignments of error were erroneous. We are of opinion also that the evidence covered by the 2d and 9th assignments of error was competent, for the reason stated in our discussion of the main question. We are not convinced that the facts offered to be proved by the sheriff and Thomas Miner regarding the sale would add anything explanatory to what the return itself shows; therefore, the court committed no error in rejecting the offers. Much less was it competent to explain the levy by testimony of a. — 458 — bidder as to his understanding. Sergeant.v. Ford, 2 W. & S. 122-126. McClenahan v. Humes, 25 Pa. 85-87. The 3d, 4th, 5th, 6th, 7th and 8th assignments of error are overruled. We see no relevancy in the evidence which is covered by the first assignment; it would have tended only to confuse, and was properly rejected. Judgment reversed and venire facias de novo awarded.