Thomas's Lessee v. Turvey

Archer, J. delivered the opinion of the Court. The plain» tiff, to show title in himself in the tract of land called Borough Hall, for which the suit was instituted; and for,the purpose of showing that the title of William Courts, under whom the defendant claimed, and in whom a seizin in fee had been shown in the tract of land for which the suit had been brought, had been divested by a judicial sale, produced in evidence, as one of the links in the chain of his title, five several writs of fieri facias, with the schedules of appraisement and returns of the sheriff, issued on judgments obtained against William Court's. The defendant prayed the court to direct the jury, that the schedules and returns were not sufficiently certain to enable the-plaintiff to recover; which direction the court gave. From this direction this appeal has been taken; and our inquiry is solely confined to the sufficiency of these schedules and returns. Every schedule, except upon the third fieri facias, states a levy on part of a tract of land called Borough Hall. At this day it would seem to be unnecessary to express an opinion on the insufficiency of such a levy and sale to pass title, when the doctrine every where throughout the state, has for a long period of years corresponded with the decision of the court below». But it is contended that there exists in this case, that which differs it from ordinary cases, and will exempt it from the ope» ration of the general rule. It is conceived, that because the plots identify the land levied upor and sold, and are uncontradicted by locations, that this circumstance cures the insufficiency of such a levy and sale; and if the only reason for such an insufficiency was that which has been stated by the appellant’s counsel, to wit, that if a recovery was had the sheriff would not know upon what land to execute the writ of possession, it might perhaps be deemed sufficient, inasmuch as certainty is by the admission of the parties in their locations, given to the place sold. But that is not the true reason. A deed for part of a tract of land, designating the quantity, but without any description of the part sold, when unsupported by the principle of election^ would be void. The ambiguity on the face [439] of the conveyance could not be explained by extrinsic circumstances. So in this case no title could pass to a purchaser at such sale; for the sheriff’s levy and return would be void for uncertainty, and could not, by any possibility, be set up by matter dc hors the return. The objection, therefore, is that no title passes by it, and the plots in the cause, which admits its location, cannot aid or set up what was radically void and defective ab initio. But the third schedule and return is in the usual form, and was upon the whole tract called Borough Hall, for which the suit was brought, and was certain and sufficient. The court below, therefore, erred in declaring that all the schedules and! returns were insufficient — this one being good and available. Judgment reversed, and procedendo awarded.