Fenwick v. Floyd's Lessee

Martin, J. at the present term, delivered the opinion of the Court. It is not necessary to go into a particular examina! ion of the several alleged errors in this case, for the proceedings are erroneous almost from the commencement to the termination of them. An action of ejectment is a remedy given to the party to obtain the possession of lands which are wrongfully detained from him, and as the sheriff, after judgment, is to deliver the possession of the lands recovered, there must be such a description of them, as will enable him to effect that purpose. This ejectment was instituted to recover 251 acres, part of a large tract of land called Resurrection Manor, By the certificate of survey it appears, that tract contains 4000 acres, and by the judgment in this case, it would seem, the plaintiff is entitled to 251 acres, part of that tract; but whether Iliad part is » he located on the north, south, east or west side of the whole tract, is left in perfect uncertainty. [174] The, declaration claims 251 acres, part of a large tract of land, without any description of the part claimed; the return to the fieri facias, relied on as evidence of title, is equally defective; it is for 251 acres, Part of Resurrection Manor, valued at $1000, without any metes or bounds, or other description, by which its location could be established. It has'been contended, that this ejectment was brought to recover, not a part of the tract called Resurrection Manor; but- for a whole tract that was called Part of Resurrection Manor; this is evidently a mistake. If we are to judge of the plaintiff’s intention by his declaration, it is clear he claimed not a whole tract, but only a part. He describes it, not as a tract called “part of a tract,” but as a tract of plantable land, being part of a tract called Resurrection Manor. This is apparent from the testimony offered at the trial — the certificate of survey, not of a tract called part of a tract, containing 251 acres, but of Resurrection Manor, containing 4000 acres; and it must be conceded, the certificate of one tract of land cannot be competent evidence to support an action for . a different tract. The return to the fieri facias, under which he claims title, is also conclusive upon this subject. The sheriff sold, not a whole tract, but as he expressly states, Part of Resurrection Manor, and this return, {if the lands had been properly described in it,) could be only offered as evidence of title to such lands as were sold by him. If a writ of possession had been issued on this judgment, whaj; part of the original tract could the sheriff deliver to the plaintiff under it? He must deliver-251 acres, but neither the writ of possession, the judgment, the return to the fieri facias; nor any other part of the proceedings, would enable him, to make a location of them. It .'would be a vain and nugatory command that could not be executed. .The court do not mean to intimate that it was necessary in this case for the plaintiff to deduce a regular title from the patentee. In an ejectment, by a purchaser under a sheriffs sale, against the debtor, who refuses to give up the possession of the land, it is incumbent on the plaintiff to produce the judgment, the fieri facias; and to prove the sale of the land, which may be done either by a deed from the sheriff, or a return to the fieri facias; and if these proceedings are correct, they are suffi [175] cient to entitle him to recover. In the absence of a deed from the sheriff, and his return to the execution, a memorandum, in writing, of the sale, must be produced to take the case out of the Statute of Frauds. judgment reversed.