M'Cormick v. Harvey

The opiniou of the court was delivered by Sergeant, J. As this writ of error is taken out by the plaintiff below, it is proper to confine our opinion to the objections taken by him to the judgment of the court. And this is, that the levy and deed embraced the whole of the defendant’s interest in the brick house and two acres, claimed in this suit, and that he ought to recover the whole, and not merely an undivided moiety. I think, however, that the description in the levy cannot, according to the fair and obvious interpretation of its words, be extended further than to comprehend a moiety. Although it begins by calling it a lot or parcel of land, &c.; yet it goes on to specify the property as the undivided half part of 60 acres, &c.; meaning by the former part to déscribe the nature and' situation of the premises; and by the latter part, the interest levied on. It does not include, as is sometimes done, all the right, title, and interest of the defendant-in the property. In that case, there would have been no doubt, the whole would have passed, as the whole then belonged to the defendant, and the plaintiff might have levied on and sold the whole. A levy ought not to be forced by strained construction, beyond the natural and fair meaning of its words, where there is nothing else to explain them. The description in a levy, is ordinarily furnished by the plaintiff or his agent, who is at liberty to embrace by it whatever he may see fit, and if he chooses to use limited and restrained language, the purchaser who claims by virtue of the plaintiff’s proceedings, must take the property according to the description furnished. It has been suggested by the plaintiff, that by a levy and sale of the undivided moiety of the lot, the whole interest of the defendant, might be considered as passing to the purchaser. But that cannot be, and this point was decided in the case of Carpenter v. Cameron, 7 Watts 51, in which it was held, that a levy and sheriff’s sale of [485] the undivided half of a tract of-land, passes no more than that quantity, notwithstanding the defendant, at the time of the levy and sale, owned two-thirds of the land. And it is there also held, that although a levy on a portion of the defendant’s estate, in a tract where he owned the whole, would be within the spirit of the act of the 21st of March 1806, and might be set aside on application to the court by the defendant, before the acknowledgment of the sheriff’s deed, yet the purchaser cannot object this after receiving the deed. Indeed, the consequence of sustaining this ground, it seems to me, would be, not to give him the whole, but to arrest the sale and thus take away even the part he has recovered. Judgment affirmed.