#### James Sheppard *v*. Samuel Simpson,

From Pitt.

Contradictory descriptions in a deed, one of which is sufficient to designate the thing granted, shall not frustrate it. But if the descriptions can be reconciled, both shall stand.

Where lands was conveyed to one by his mother, and afterwards a • moiety of it devised to him by his father, a Sheriff's deed conveying the *interest*of this person and describing it as “ a part of three patents, situate, &c. being land devised to him by his father,” passes only a moiety.

Petition for partition, to which the Defendant plead that “ he was not tenant in common with the demandant.” On the trial of this issue the jury returned a special verdict. the material facts of which, were as follows: The laud in question belonged to one *Jemima Smith,*who conveyed it in fee, to her son Charles. *David Smith,*the husband of *Jemima*and the father of *Charles,*by his will devised the same land to his wife for life, with a remainder in fee, to his sons *Charles*and *John.*Before the executions and the sale, hereafter mentioned, *John Smith,*the devisee (if *David,*died intestate, and without issue, and *Charles Smith*succeeded, as one of his heirs, to one eleventh of his real estate. After the conveyance by the mother, and after the death of *John,*executions issued against *Charles,*under which the land in question wa s sold by the Sheriff, whose deed, after setting forth the executions, recited that he had levied them “on a tract of land, in the county of Pitt, situate on the south side of Tar river, and on botli sides of *Hardie's*run, being the land devised to *Charles Smith,*by his father *David Smith,*and the undivided share of the said *Charles Smith*in the lands of his brother *John Smith,*containing together five hundred acres, more or less, being a part of three patents granted to *John Ilardie;*and also upon the interest or shave of the said *Charles,*in the crop growing *238upon said land.” In a subsequent part of the deed, the Sheriff “did grant, bargain and sell” to the purchaser, “ the tract herein before mentioned, and the share of the crop thereon growing,, with all the estate and profit of the said *Charles Smith*in and to the said land and crop.” The Defendant claimed title under the purchaser at the Sheriff’s sale. *Charles Smith*liad conveyed any interest he had in the land to the demandant.

Upon these facts, his honor Judge Paxton-, on the Spring circuit of 1826, thinking that the purchaser at Sheriff’s sale, took only one-half and one-eleventh of one half of the land, decided that the parties were tenants in common, in the proportion of five-elevenths to the de-mandant and six-elevenths to the Defendant, and awarded a writ of partition *;*on the return of this writ at the next term, before his honor Judge Mangum, a judgment of confirmation vyas entered, whereupon the Defendant appealed.

*Hogg,*for the Appellant.

When the identity of the thing intended to be granted, is ascertained with sufficient certainty by the grant, and operative words arc used sufficient to pass the thing thus ascertained, this intent shall not bo disappointed by an error in a particular description. Of the application of this rule, many examples arc given by *Lord Bacon*under the maxim “ *ventas nominis iollit errorem demonstration nis’’-(Reg.*25) and this rule is well stated, and its operation clearly illustrated in *Jackson*v. *Clark,*(7 *Johns. Rep.*217) and *Wortfiington*v. *Ililyar,*(4 *Mass. R.*205.)

This principle is decisive of the present case. The whole of the Sheriff’s deed taken together, shows that he intended to levy on, and to sell a certain tract of land, particularly described and identified, as the property of *Charles*Smith, and there are apt words to convey the tract thus described. The Sheriff supposed indeed that *239*Charles Smith’s*interest therein was (inly an undivided share, and that be derived that interest from a source expressed in the deed. Whereas in fact, *Ch. Smith*was entitled to the whole, ajnd derived his title in another manner; yet this mistake shall not prevent the deed, from passing the whole interest, it being the intent to convey the tract with such interest as *Charles Smith*had, and though the superadded expressions make the description false in particulars, yet sufficient appearing to designate the estate, it shall pass to effect the intent.

If this he true, in regard to private deeds, it should apply with greater force to the official deeds of the Sheriff. He makes no survey, has no knowiedge of the lands, the quautity of the debtor’s interest, nor the mode of its derivation, and consequently does not, and cannot sell by *metes*and *hounds*— ail that he is required to do, or ordinarily does, is to designate the tract of land intended to be soid by its name, location or other general description. If a mistake in a particular description, resting solely in the knowledge of the debtor, shall be allowed to destroy or vitiate the operation of the deed, both the creditor and the purchaser will be exposed to frauds, which as they cannot’detcct, they cannot escape.

Gaston, contra.

The Sheriff levied on, sold and conveyed that *quantum*of interest which it was understood *Charles Srpiith*had in the land by devise, &c.

This construction would be given if this was a mere private deed. The cases cited on the other side prove only, that where the deed ascertains what is intended to be granted, and a false description is added, the deed shall not be rendered ineffectual, but shall operate ac-according to the general intent — a proposition which is not disputed, but which docs not affect the present en-quiry. Here the question is not which shall he sacrificed, the general intent, or a particular description, but *240what is the general intent ? Not whether the subject Blatter being ascertained, shall the deed fail to operate because of a false recital in respect thereto, but what is the subject matter ? Is it tiiat which agrees with every description in the deed, or tiiat which agrees with a part of the description only ? The construction must be on the whole deed, and the general rule is, tiiat where there is a recital, or any particular description manifesting fhe subject matter of the contract, general words which talcen by themselves, would comprehend other subjects, shall be referred to such recital or description, and be restrained to the subject matter of the contract. Thus in the condition of a bond, *(Lord Arlington*v. *Merrick, 3 Saunders 410*— Liverpool *Water Works*v. Atkinson, 6 *East 507*— and *Grumpier*v. *the*Governor, decided in this Court at the last term, *ante*52). So in a release, *(Cole*v. *Knight,*3 *Mod. 177*— Thorpe v. *Thorpe,*1 *Ld. Hay in. 285*— Butcher v. *Butcher, 1 Bos. <§• Ful, new Rep.*113). So in a covenant, *(Burrows*v. *Wright,*2 *Bos.*& *Ful.*IS *<*— Earl of *Clanricarde’s case, Hob. 9.73).*And so also in a conveyance, *(Boddington’s case,'3 Co.*33, *Cro.Jac.*22, 16 *Johns.*116.)

The very purpose of a recital is to state facts ami circumstances, and declare the object of the deed. The contract is the law imposed on the parties,.and the recital is a key given by themselves to open their meaning, to resolve doubts, and to fix witii authority, the interpretation to be given to the general expressions in which the operative provisions of the contract are declared.

But this is a Sheriff’s deed, and therefore demands especially the construction for which we contend. It does not operate by force of ownership, and therefore the rulé that deeds shall be taken most strongly against tiie grantor iias no application, it operates by virtue of the execution, levy and sale — thererefore nothing can pass except wliat was subject to the execution — was levied on ;j»dei> *241it, and was sold under the levy. The Sheriff recites a levy on a tract of land in the county of Pitt, situate, &c. “ being the land devised to *Charles Smith”*&c. “ and the undivided share” &c. and *conveys*“the tract before mentioned” “ with all the interest of *Charles Smith,*&c.” Here the word “being” is equivalent to “ that is to say’F and qualifies the expression “ tract of land,” to mean a certain interest or estate therein. It is not used to *identify*the tract as supposed on the other side, but to explain what the Sheriff meant by a tract of land, as the subject of the levy, and to confine its meaning to a particular *extent.*

It is assumed w ithout evidence, that the Sheriff intended to levy on all the interest whatever it was of *Charles Smith.*Besides the question is what did he levy upon? He supposed *Charles Smith*to have a certain interest, and he levied on that interest, which he supposed he had, and it matters not that liad he known there was a greater interest, lie would have levied upon it.

This particular interest expressed in the deed was the subject of the levy and of the sale — that, and that only,, the purchaser bought and paid for, and it seems difficult to assign a reason, why more should pass.

Public policy requires the *construction*for which we contend, and forbids a contrary one, as dangerous to the debtor and to the creditor, and introductivo of fraud.

It is required of the Sheriff that iie sell at public sale, (2 *Hayw.*336) that’he show the goods sold, (3 *Murph.*470) and he is forbidden to sell several specific articles en masse. (2 *Hawks*110).

With regard to lands, as he cannot actually seize or show them, and is obliged to sell, not on the land, but at the Court-House-; it is at least to be demanded that he shall distinctly declare what he professes to sell, and that nothing else shall pass, *(vide*1 *Johns. Cas.*284 — IS *Johns. Rep. 537, 551,*101 — 14 *do.*35S.)

*242*Hogg,*in reply.

It is not denied that the recital shall qualify the rest of the deed, and that the construction is to be made on the whole deed $ on the contrary, our argument is founded on the supposition that the recital is repeated *verbatim*in the operative part of the deed.

It is distinctly conceded that if the words “ being &c.” were intended to restrain the previous words “ a tract of land” to a narrower sense than they import of themselves, then the former words only shall operate. But the question is, was that the intention ? I hold it was not, but that the Sheriff intended to sell the “ tract of land” with such interest as *Charles Smith*had. Now though when the intent is ascertained to be, to convey the land devised and the undivided share, &c. only, then the general expressions shall be rejected, or restrained so as not to enlarge that intent — yet these general *words*arc important to enable us to ascertain whether that was the intent. Tiie Sheriff recites that he has levied on “ a tract of land,” describing it, “being the land,” &c. and then he conveys “the tract with all the interests of *Charles Smith.”*If we make the construction upon the entire deed, and resort to no matter *dehors*— does he not convey the whole tract, if *Charles Smith*was entitled to the whole ? And it is not the sense I give to the word “ being” as intended to identify, fully justified. He sells the tract levied on, with *all the interest.*His authority was sufficient to seií all that *Smith*had — the words are sufficient to transfer *it*— Smith was entitled to the whole, and why'should not the whole pass by the deed ?

Tatlor, Chief-Justice.

The question in controversy is, what land was actually conveyed by the Sheriff's deed to *David Smith,*whether the whole tract as conveyed to *Charles*by his mother, or the land as devised to him by, his father, and supposed to be acquired by the death of his brother *John Smith.*The granting part of *243the deed conveys the land *“*befbre-mentioned (in the recital) with the share of the crop thereon growing-, with all the interest, estate and profit of the said *Charles Smith*in and to the *said land*aad crop.” The recital of the-deed is, that the Sheriff levied “ on a tract of land in the county of Pitt, situate on the soutli side of Tar river, and on both sides of Hardic’s run, being- the land devised to *Charles*Smith, by his father *David Smith,*and the undivided share of the said *Charles Smith*in the lands of his deceased brother *John Smith,*containing together five hundred acres, more or less.” There is a further recital that he also levied “ upon the interest or share of the said *Charles*in the crop growing upon the said land.

It is evident then, that the Sheriff neither levied upon or sold the whole, as in fact owned by *Charles Smith,*because he expressly refers to his title as acquired from his father’s will, and the death of his brother. And as to the moiety devised to *John Smith,*that cannot pass by the deed, because the Sheriff only conveys the individual share of *Charles*in that moiety. And to make this construction more obvious, the deed states that this individual share in *John’s*moiety, *together*with *Charles’s*moiety, contain together five hundred acres. If the whole tract had been conveyed, *Charles*would have been entitled to the whole of the crop, whereas only the share lie was supposed to be entitled to in *John’s*part is conveyed.

The principle is conceded, that if in the description of an estate in a deed, there are particulars sufficiently ascertained to designate the thing intended to be granted, the addition of circumstances false or mistaken, will not frustrate the deed. But I am unable to perceive any description or particular in this deed which ascertains that the whole tract of *Charles,*as derived from his mother’s deed, was designated as levied upon or conveyed.

The first description *“*a tract of land in the county of Pitt, situate on the south side of Tar river, and on both *244sides of Hardie’s run,” does not designate the whole tract as derived to *Charles*from his mother’s deed, because it is equally a true description of the land upon the supposition that he derived title from his father’s will, and the subsequent death of his brother *John.*But when the recital proceeds to state *“*being the land devised to *Charles*by his father *David,”*it limits and restricts a de* scription applicable to both titles, to that specific one which the Sheriff believed him to own. Then the granting part of the deed conveys the tract “ herein before-mentioned, with all the. interest, estate and profit of the said Charles,” in and to the said land and crop.

Every part of the description is true in relation to the title supposed to be in *Charles*under his father’s will $ every part is false with respect to *Charles's*title to the whole tract from his mother’s deed, provided the first general description is sustained by the recital, which the authorities cited clearly shew it ought to be.

The Sheriff’s intent as to what land was meant to be sold, can be collected only from the deed. It is the land there described which was levied upon, bid for, and sold, and what I apprehend the Sheriff likewise intended to sell: though I have little doubt that if he had known the true state of the title, he would have sold the whole *tract;*but being misled by the will of the father, he sold only the land claimed under it. It is of great consequence to the public, that land sold at a Sheriff’s sale, should be so specified and defined, that every.person attending may know what price to bid, and to be under no doubt as to the land he is bidding for. If the whole of *Charles’s*land passed under this deed, it would give an undue advantage to those bidders who were apprized of the true state of the title, and enable them to purchase the whole tract, while others were regulating their bids by the belief that nothing more than the land described by the Sheriff was set up for sale. In this case, the price *245was given for the land as described in the deed, and not for the land which it is almost certain the Sheriff did not j_now anlj which there is no reason to believe the pur-ciiasers did. It has been said with much force on a similar question, “ It ought to be received as a sound and settled principle, that the Sheriff cannot sell any land on execution, but such as the creditor can enable him to describe with reasonable certainty *;*so that the people whom the law invites to such auctions, may be able to know where, and what is the property they are about to purchase.” Sales by process of law, are under the protection of rules established for the common safety, and should be construed with a view to repress speculation and prevent the unnecessary sacrifice of property — consequences which would probably follow from a judgment in the Defendant’s favor. 1 am therefore of opinion that the judgment of the Superior Court be affirmed.

Henderson, Judge.

If I understand the argument of the Defendant, it is that the reference made in the Sheriff’s deed to <he will of *David Smith,*describing the land sold, should be rejected, as repugnant to other descriptions which are sufficient to identify and locate it, which being more certain should control, and if necessary correct that contained in the reference. The description contained in the Sheriff’s deed is “a tract of land lying in the county of Pitt, on the south side of Tar river, and on both sides of *liar die’s*run, being the lands devised to *Charles Smith*by his father *David Smith,*and the undivided shave of ihe said *Charles Smith,*in the lands of ids deceased brother *John Smith,*containing five hundred acres more or less, being *apart*of three patents granted ro *John liar*die.” It is true, as contended by the counsel for the Defendant — that if there is a full and clear description contained in one part of a deed, and in another part, one less full and clear, which can*246not be reconciled with the first, the weaker shall give way, and if it cannot he disposed of otherwise, entirely rejected. Thus if A grant to B black acre, which he purchased of C, black acre will pass, although A purchased it of D, and not of C. If possible, the weaker description shall not be rejected : where they can be reconciled, it shall be done, and it is rejected only when that is impossible. But so far am I from thinking in this case, that either should be rejected as false or contradictory, I am of opinion that the description is incomplete without both — that the lauds lie on the south side of Tar river, in Pitt county, on both sides of *Ilardie’s*run, is certainly not sufficiently descriptive, nor is their locality fixed by further adding, “ being pari of three patents granted to *John*Ilardieif the words had been *6‘*being tlie lands granted to *John Ilardie,”*it would have admitted of very great doubt, whether the reference to *David Smith’s*will could have any *effect;*but the words are *“part*of three patents,” what part? one-half, one-tenth, or one-twentieth. The reference to the will of *David Smith*is therefore necessary, to ascertain what part, and the Defendant himself is under the necessity not only of admitting it, but of insisting that it was made solely for ¡he purpose of identifying the *lands-*sold, and not the quantity of *estate*— for if the reference is used for the latter purpose, nothing passed,, as *Charles*derived no estate in the lands from his father, he having none in them to give, they being the property of his mother.— Indeed if there is any doubt at all, it is whether *any thing,*rather than *"what*passed ; but I think there is none or very little, the reference to the will rendered that certain, which was before vague and undefined.

Per curiam. — Judgment affirmed, with the costs of this Court. '