#### *Den on demise of*JAMES MORRISON *vs.*JOHN LAUGHTER.

Where there is a description of land in a petition for sale for- a partition, which does not embrace any particular lands, and a decree in a Court of Equity for the sale of the lands “ mentioned in the petition,” such decree is not sufficient to estop one of the parties, claiming by a deed from the ancestor; and a deéd filed *by*the defendant in that suit, under an order of the Court, (not in any way incorporated into that proceeding) will not render the description or the decree more certain.

Ejectment, tried before SauNdes, Judge, at-the Spring Term, 1855, of Henderson Superior Court.

The plaintiff claimed title únder a decree, a sale and a deed, made to him by the clerk and master of the Court of Equity of Buncombe county. The petition, offered in evidence, set forth that James Laughter died seized and possessed of a large real and personal estate: that the petitioners did not know the quantity, but believed it to be 800 acres or more, that Bird Laughter took and kept the- title deeds, and tffat they could not set forth the contents of the said deeds, or give copies of them. They pray, that the said Bird Laughter may be com*355pelled to answer and set forth or exhibit the said title deeds, and also for a sale. Bird Laughter, without answering otherwise, filed certain deeds in the office of the clerk and master, which embraced the land in question. A decree was made “ that the lands mentioned in the complainant’s bill, be sold on a credit, &c.”

The defendant was a party defendant in this proceeding in the Court of Equity.

The defendant produced in evidence a deed from his father, James Laughter, dated before these proceedings. He also proved, that at the sale by the clerk and master, he appeared and forbid the same.

On behalf of the plaintiff it was contended; that the land in question, was included in the proceedings of the Court of Equity; that the defendant was a party to the same, and that he was thereby *estopped*to set up any other title than that exhibited in the pleadings in that suit: and his Honor being -of that opinion so instructed the jury, who gave a verdict for the plaintiff. Defendant excepted to the instruction, and on judgment being given against him, appealed to this Court.

*ET. W Woodfin*and Bynum, for plaintiff.

Baxter, *Edney*and *J. W.*Woodfin, for defendant.

Battle, J.

The record of the proceedings of the Court of Equity of Buncombe county, in the suit of Wm. H. Ledbetter *et al.*v. the present defendant and the other heirs at law of Jas. Laughter, dec’d., for a sale for partition of the lands of the said James Laughter, shows that the lands were not otherwise described, than as the lands of the said deceased. Now, if the defendant had obtained a good title from his father, for the land in controversy, by a deed executed in his father’s lifetime, we cannot see how he could be estopped from setting it up by any thing which was done in the suit in Equity. If such were the case, the land in question was not embraced in the bill, nor the order of sale, and of course the clerk and master had no authority to sell, and no title passed by his *356deed to the purchaser. The 'filing of the deeds by Bird Laughter certainly could not enlarge the description of the lands as given in the bill: though it might have enabled the plaintiffs therein to have had it amended, and thereby, to have included the land in question. The case states that when *the*land was offered for sale by the clerk and master, the defendant objected.to the sale: but if he had not done so, we are not aware of any principle which would have excluded him from claiming it. The legal title to land cannot be thus transferred by a parol estoppel.

We are of opinion that his Honor erred in holding that the decree of the Court of Equity, and the sale under it, gave the plaintiff a title conclusive against the defendant.

Per Curiaji. There must be a *venire de novo.*