Scott v. Sheakly

Kennedy, J. (after stating the case) delivered the opinion of the Court. Several matters have been assigned for error, the first of which is the exception taken to the opinion of the court on the admission of evidence. So far as the defendant offered to give evidence of the instructions of the plaintiff in the execution to the sheriff, in regard to making the levy and the interest or estate that he should levy on, the court decided in favour of the plaintiff by rejecting the evidence; and I think very correctly too: but so far as the evidence offered to be given tended to show what property was embraced within the terms of the levy, the court decided in favour of its admission ; and this, if there be error in if, is the only thing in the opinion of the court on this point, that the plaintiff can complain of, because the other matters were ruled in his favour. Then with respect to parol evidence being admissible for the purpose of showing what was included within the description contained in the levy, and whether the house and lot of ground in question were within it or not, it seems to me impossible that a doubt -can be entertained of its admissibility. It is only by such evidence that the locality of the property described in the levy can be ascertained and identified; and a.s the -lot in controversy is not specifically described in, or made a part of the levy, it must be obvious that whether it be actually embraced within it or not, must be determined by means of parol evidence. The reasonableness of this principle seemed to be rather admitted by the plaintiff’s counsel in the argument; but it was objected that, under the decision of the court admitting the evidence offered on this point, [53] other evidence was given altogether inadmissible in its character; and that the court, in their charge to the jury, took notice of it as if it were properly admissible, and entitled to consideration by the jury in forming their verdict. If any such evidence were admitted, it certainly does appear from the record of the case to have been done not through any error or mistake of the law on the part of the court. And it cannot be that a judgment is to be reversed, because evidence, not strictly admissible on the issue joined between the parties, was given by one party without objection from the other, and afterwards commented on by the court to the jury as if it were properly admissible. Beside, this objection does not appear to be comprehended in any of the errors assigned. The judgment cannot, therefore, be reversed on the first error assigned. The second error is an exception to the charge delivered by the court to the jury, on'certain points submitted by the counsel of the plaintiffs. So far as questions of law were involved in these points, they were correctly answered. But some of them were clearly questions of fact, and therefore came exclusively within the province of the jury to decide them according to the evidence : as in the third point, where the court was requested to charge the jury, “that the levy embraced all the interest of Carlisle in the tract of land bought from George Sheakly which was bound by the judgment, including Georgetown.” Now whether the levy did embrace all the land purchased by Carlisle of Sheakly which was bound by the judgment, or not, was certainly a matter of fact to be decided by the jury from the evidence given. By comparing the description of the land contained in the deed and thereby conveyed from Sheakly to Car-lisle, with the description of the land contained in the lev3q I should say that they were not the same ; and whether either included the lot in question was a fact which could only be determined by the aid of parol evidence, because it is not pretended that it is specifically mentioned or described either in the one or the other. The court, then, were not bound, and indeed could not, without usurping the province of the jury, give such direction as was requested, in this particular, to the jury. The questions, whether the lot of ground in contest was embraced within the levy, or not, and how far the parol evidence given on the trial was to be regarded in deciding it, comprehend every thing involved in the points submitted by the plaintiff’s counsel to be answered by the court. It being admitted on the trial that the land in dispute was one of th'e lots of Georgetown, No. 32 in the plan of the town, and that it was not disposed of by Sheakly prior to his conveyance to Carlisle, nor reserved by Sheakly in his deed ; it was therefore contended by the plaintiff’s counsel, that it was necessarily embraced in the sheriff’s levy; because, as is alleged, the levy expressly describes the land taken in execution as being “ the same piece and tract of land on which Georgetown is situated.” If this were really so without more, the conclusion contended for by the [54] plaintiff’s counsel, would perhaps be more plausible. But it seems to me that the description in the levy is susceptible of a different construction, and that it may as well be read in such a way as to exclude the lots of the town altogether, as to give it the meaning contended for by the plaintiff’s counsel, only so far as the lots of the town are specifically called for, which seems to be the case in respect to the lot No. 46, on which the farm house stands, and lot No. 22, on which the grist mill is erected. In order to render the words of the levy intelligible and to make sense of them, they must undergo some change. The words of the levy are, “ all the right, tide and interest of the defendant of, in and to eighty acres of land, more or less, situated in Sandy Creek township, adjoining of and the same piece and tract of land on which Georgetown is situated, &c.” Now, the words, “ adjoining of and the same piece, &c.,” are unmeaning, or rather perhaps involve a contradiction; because to say that a piece or tract of land is the same land that it adjoins, is absurd and cannot be; yet this would seem to be the literal meaning of the words used in this part of the levy, if they can be said to mean any thing at all. It may be fair, however, notwithstanding this apparent absurdity, to presume that something rational Was intended by the introduction of them. But in order to get at that intention, it is necessary to change the form of them and either to'supply something that is wanting, or otherwise to remove what may seem to have been introduced unnecessarily, through want of capacity perhaps to put the matter in writing in intelligible form. By striking out the copulative “and” between the words “adjoining of” and the word “ same,” the description becomes at once not only perfectly intelligible but- sensible ; and will then read thus : “ all the right, &c. of the defendant of, in and to eighty acres of land, &c. adjoining of the same piece and tract of land on which Georgetown is situated.” It is easy to imagine that the word “and” may have been inserted here inadvertently or ignorantly; but it is utterly impossible to supply any words that are wanting that would make sense by retaining (lie particle “and,” and at the same time fulfil or meet with certainty the intention of the sheriff when he committed the levy to writing. If the word “and” be rejected as surplusage, the town lots will necessarily be excluded from the levy, with the exception of those whereon the fiante house and grist mill are erected, which are particularly called for in the close of it. The only objection I see to this form of rendering the language of the levy is, that the natural import or meaning of the words, “the same piece or traet of land on which Georgetown is situated,” must be the same with the one hundred acres conveyed'by Sheakly to Carlisle; and hence the levy would exclude all the land to which it appears Car-lisle had at that time any claim there, and consequently might render it entirely inoperative. To this, however, I think it might be answered, without doing much violence to the true import of these words, if it should be found necessary in order to avoid such [55] a result, that they ought to be confined to mean merely the ground plat of the town, and not the tract of land itself as it was before the town was laid out and taken from it. But as this construction of the levy does not seem to be necessary in order to support the charge of the court below to the jury, in answer to the points submitted by the plaintiff’s counsel, I do not wish to be understood as deciding positively in favour of it. For I am satisfied that the circumstances given in evidence, when taken in connection with any rational construction that can be put on the levy, are amply sufficient to show beyond all doubt, that the lot of ground in question, as well as all the town lots sold by Carlisle and improved by the erection of building thereon before the levy was made, were not intended and cannot be considered as embraced within it. The terms of the levy seem to be completely satisfied, by giving to it all the unimproved lots retained by Carlisle and enclosed within his fields and occupied as part of his farm, together with the lots on which the dwellinghouse and mill stand, with the out buildings used as appurtenant thereto. The purchaser will thus obtain the full quantity of land called for by the terms of the levy, and perhaps more, as well as all the buildings and improvements to which there is the slightest reference in it. The circumstance of the frame house and grist mill being particularly specified in the levy, without naming any other building whatever, is powerful evidence to show that houses and buildings separate and distinct from them were not intended to be included within it. The maxim expressio unius est exclusio alterius applies with full force here. From the parol evidence given on the trial, it appeared that as many as seven or eight of the town lots embraced within the deed of conveyance from Sheakly to Carlisle, had been disposed of by the latter, upon which valuable dwellinghouses and other buildings were erected at the time of the levy; yet all these may be claimed by the plaintiff under his purchase at the sheriff’s sale with as much propriety as the house and lot in question. This evidence, taken'in connection with the terms of the levy, was even more than sufficient to satisfy any reasonable mind, that the lots thus improved were not included in the levy, and that the plaintiff, under his purchase at sheriff’s sale, could have no right to them either in law or equity. As was there was no attempt on the part of the plaintiff to controvert the truth of this parol evidence, the court below were warranted in telling the jury that the plaintiff could not recover; and this disposes of the third and last error assigned. Judgment affirmed.