Sergeant v. Ford

The opinion of the Court was delivered by Huston, J. This was an ejectment by John Sergeant for 21 acres of land with the appurtenances. The dispute arose on the following facts: — On the 17th of May 1831, Thomas Ford and [126] Hopewell his wife conveyed by deed to Charles Ford, their son, and his heirs, 121 acres of land, bounded, &c., and describing it exactly, “ excepting 21 acres for and during his natural life, bounded as follows, beginning at James Ford’s, and running north and south, east and west, so as to include the dwelling-house and barn, with the orchard, and also one-half of all the hay, and one-third of all the grain that may be raised on the residue of said tract, during his life; and if he should die before his wife Hopewell, she then to receive one-fourth of the hay and one-sixth of the grain for and during her natural lifetime, and then the above reservation to cease, and not till then.” The court were right in their construction of this deed; although the first part looks like a provision for the father alone, it is explained by the concluding part. The obvious meaning is a reservation of the 21 acres, and house, barn, and orchard, during life, by the father, and an engagement by Charles to deliver the share of hay and grain to his father during his life, and a less share to his mother, if she was the survivor. “ She to receive,” is insensible, unless the son was to deliver to her. The stipulation about shares of produce is contract, as much as a lease of a farm, he paying a proportion of the produce. The reservation of the 21 acres is to last as long as Hopewell’s life, and then to cease; this gave the residue to Charles at once, and the reversion of the 21 acres on the death of his father and mother. He could sell no more, and the sheriff could sell no more than he had; and the purchaser got no more. The levy described it by those who bounded the 121 acres on every side, as was equivalent to a description by courses and distances all round. The purchaser then got all the estate, neither more nor less than Charles had. In strictness, the testimony of Kepler was not evidence. The levy, venditioni exponas, and deed, pass the title; they are written, and together make record evidence of title to the purchaser. It never can be permitted that what third persons thought or said, can affect a title created and evidenced by records. Fraud, which vitiates everything, may make exceptions: as when a person intending to purchase, and who does purchase publicly at a sale, represents that only a certain part is selling; but what officious third persons say, or the talk of bystanders, cannot with safety be permitted to enlarge or limit the levy. It is not, however, a cause of reversing in all cases that immaterial evidence has been heard, if it has no effect on the opinion of the court, or decision of the jury. Counsel too often offer a witness to prove a little more or a little different from what he does prove; and if it does no harm, if the case eventuates as it must have done if no such testimony had been given, it is no reason for reversing. I will observe, if the levy does not mention all the land the defendant has in the tract levied, or if it and the advertisement do not fairly describe the property, the defendant may, by appli [127] cation to the court before the sale, obtain permission or direction to the sheriff to amend his levy so as to make it correct. No objection can safely be heard after the whole is completed, money paid, and a deed made and acknowledged. I mean no objection merely to forms, and which could have been made, which were known, or parties were bound to know and make at a previous time. I am not sure I understand some part of the opinion of the court. He says, if the proof shows that the land in controversy was not levied on or sold, it does not pass, although it is included in the outside boundaries of the tract of 121 acres. In another place he had said, but even if included in the levy, and intended so to be, the plaintiff could not recover against any existing life-estate. Now, I suppose him to mean the same thing in both sentences : that is, if within the clear description of the levy there was a house or lot not the property in possession or reversion of defendant in the execution, it would not pass; and clearly it would not, for the sheriff cannot give title to what was not the defendant’s. But if he means to say that part of what is defendant’s property, and is clearly within the levy, does not pass, I do not agree with him. It does pass, as I have said, unléss prevented by fraud in the purchaser, or of which he knew and concealed for his own gain. See Streaper v. Fisher (1 Rawle 155); Grubb v. Guilford (4 Watts 244); Swartz v. Moore (5 Serg. & Rawle 257); Scott v. Sheakly (3 Watts 50). Some parts of the charge on hypothetical points are not material in this case. On the main point, material to a decision of this case, there is no error. The matter trying was whether Sergeant could, at present, recover the possession of the 21 acres, or must wait until the death of Hopewell Ford; on this the opinion of the court was correct. As to obiter dicta, on matters argued, which dicta we do not perhaps understand, we have nothing to do with them, and give no binding opinion on them. Judgment affirmed.