#### *T. J. Dyson*v. *A. G. Leek et al.*

Columbia,

Nov. 1848.

"Whore the plaintiffhad taken a Sheriff’s deed, with an imperfect description of the land conveyed thereby, and, in an action of trespass to try titles, had it in his power to supply that defect, and failed to avail himself of it, a litigation of the same matter in this Court was not allowed.

If it was perfectly competent for the plaintiff to have established at law, all that he can prove here, and he omitted or neglected to adduce the testimony necessary, it furnishes no ground for the interference of this Court.

*Before*Caldwell, Ch. *at*Edgefield, *June Sittings,*1848.

After heaving the case on hill and answer, his Honor delivered the following decree.

Caldwell, Ch. The bill and answer and their exhibits are not necessary to be recapitulated to understand the questions involved in this case, and I shall therefore only refer to such parts of them as are material.

This controvercy has arisen from a case of trespass to try titles, in which Dyson was the plaintiff and Leek the defendant, in the Court of Common Pleas. The case' is reported in *2402 Richardson’s Law Reports, 543. It appears the defendant Leek, was deeply indebted, that several judgments had been '’obtained against him, and executions had been issued on them ; among others, the plaintiff had obtained a judgment against him for $8,000, with interest from 3 October 1842, and costs for $37 08; the execution was lodged on the 4 October, 1842; that the defendant was desirous of selling his lands (a part of which is the subject of dispute) to the plaintiff, and together with the wife, made an agreement under seal, with Dyson, on the 30 October, 1843, wherein Leek and his wife covenanted, before the first day of December following, “to make out a complete title in fee simple to and by such sufficient deed or deeds of conveyance as such shall be approved by the said T. J. Dyson or his counsel, &c., free from all manner of encumbrances, all the following tracts or parcels of land, viz: one tract containing seven hundred and fifty acres, more or less, it being the same land which I heretofore purchased from the said Thomas J. Dyson, known as a part of the Anderson Mill tract, lying in Edgefield district, on Big Saluda River and Wilson’s Creek, in the State aforesaid, bounded East by Saluda River, South by R. Williamson’s land, West by the *Owens tract,*North by Thomas J. Dyson’s land, on Wilson *Creek,*and hath such marks and boundaries, as will appear by the annexed plat to be laid out by the said Thomas J. Dyson. One other tract or parcel of land, known as the Owens tract, lying in the State and district aforesaid, containing two hundred and twenty-two acres, bounded S by S. Hargrove and P. W. Pickens, W. by William Mays land, N. by D. Proctor, and a portion of the above mentioned Anderson tract, E. by the Anderson tract. The said Thomas J. Dyson to have possession of the field lying between Wilson’s Creek and Dyson’s ferry road, near the old Mill place, containing about 80 acres, the first of January next, and to have possession of all the above mentioned tracts the first of January, 1845, and have right to clear or cut away the timber on the said tracts of land, any time from the date” &c. It is very apparent, from the amount of judgments against the defendant, and the value of the property he owned, that he had not the means of paying them, and performing his contract with the plaintiff, and the only mode by which the latter could be effected, was by a sale of the defendant’s lands by the Sheriff to the plaintiff, to perfect his title; to consummate this, it was necessary that Owens (who, at the date of the agreement, had not conveyed the tract of land called the Owens tract, to the defendant, although he had purchased it and resided on it) should convey the Owens tract, of two hundred and twenty two acres, to Leek. This was advised by counsel, and accordingly, a few days before the Sheriff’s sale, Owens did make a deed conveying this tract *241to Leek, in the presence of three persons, Stalnaker, Gibbs and sheriff Christie, and afterwards on the 5th of February 1844, the sheriff, (Chistie) sold*one thousand acres of land' to the plaintiff, which he described in his sale book as “a tract of land containing 1000 acres, more or less, adjoining lands of F. W. Pickens and Daniel Proctor, sold for f>6,500,” and afterwards, in the absence of the plaintiff, made a deed to him of the land, describing it as “one thousand acres, more or less, adjoining lands of F. W. Pickens, Proctor and others,” (A. Hunter’s testimony.) It appeared at the hearing that the advertisement described the land as one thousand acres of land, where the defendant lives, &c. Leek lived on the Owens traet. The question made in the Court of Law, was whether two hundred and eighteen aeres, called the Owens land, were included within the deed from the sheriff to the plaintiff, Pickens’ and Proctor’s land would be the adjoining tract, whether the Owens land was excluded or included, so that this boundary alone did not show what land was intended to be conveyed. “The only remaining description,” (says Justice Evans, delivering the opinion of the Court) “is the quantity. If the land can be otherwise located, quantity is in general immaterial, but when it is resorted to as one of the evidences of intention, it then becomes a material part of the description. < The Anderson land is said, by the surveyor, to contain 1007 acres. It is said in the surveyor’s explanation of his plat, that 150 acres of this had been sold, as he was informed by the plaintiff, by the defendant to Mr. Poe; taking this off there are nine hundred and ninety-two acres left, approximating very nearly to the quantity mentioned in the deed; but if we add to this the Owens land, 218 acres, then the number of'acres exceeds what is called for in the deed, by more than 200. We do not, therefore, perceive that the verdict of the Jury withholds from the plaintiff any thing included in his deed. The verdict gives him a tract of land, adjoining F. W. Pickens, Proctor and others, and containing within 8 acres of the quantity mentioned in his deed. It was said in the argument in this Court, that a part of the Anderson land, on the South side, had been sold off to Pickens; there was some evidence that Pickens’ land, which was called for as a boundary, lay on that side, and that something was said by the witnesses to that effect, but its location and number of acres was not found on the trial, nor does the plat shed any light on the subject. I think it likely that both parties understood the Owens land to have been included in what the sheriff sold; but if the plaintiff took a deed with a description which in the opinion of the Jury does not’ include it, he cannot complain. When a plaintiff' eomes into Court, demanding that which is in the defendant’s possession, he must show that he is the legal owner, before he can expect *242to recover it by law; this the plaintiff in this case has failed ^ an¿ his motion for a new trial is dismissed.”

The case made at the hearing was different fiom what it was in the Court of law. The agreement under seal of the 30 of October, 1843, was offered in evidence, and its execution testified to by J. W. Coleman, one of the subscribing witnesses ; there was no proof that this contract was ever rescinded or abandoned by the parties, but many circumstances stated by the witnesses, shew that plaintiff, defendant and his'wife, considered it subsisting, and that they had a right to enforce its execution. The acts and admissions of the defendant leave no doubt upon this subject. Leek and wife and others filed a bill against Dyson and sheriff Christie, in which it is admitted that the Owens land had been sold by the sheriff, and Leek claimed that Dyson should be compelled to perfect his agreement (of 30 October 1843,) by accounting for $7,100, instead of $6,500, which he had bid at. sheriff’s sale for the land ; this bill was dismissed at June Term, 1845, for want of prosecution, and the plaintiff ordered to pay the costs. On the 4 November, 1843, Mrs. Leek, the wife of the defendant, gave the plaintiff a receipt for $100, in part of the Owens and Anderson tracts of land. There was no evidence that Leek was present when it was given or that he had expressly authorized his wife to receive the money, but there was testimony that established the fact that she often attended to his business for him, settled cases (brought against him) with a magistrate, and in sheriff’s office, and one of the witnesses said she assumed the control of his business; and indeed there appears to have been some reason for it, as his intemperate habits often rendered him incompetent to manage his business.

The evidence clearly establishes that Dyson and Leek did, a short time before the first Monday in February, 1844, agree that the lands contained in the Anderson and Owens tract, should be sold at sheriff’s sale, that the former might obtain a perfect title to them, but the testimony does not show what price Dyson'was to give for the lands ; he bid $6500, for them, and they were knocked down to him, and his bid was entered in the sheriff’s sále book, for that amount. Leek was present at the sale, but made no objection to the amount bid, or to the sale. If *this*agreement was isolated, on parol proof there might be some difficulty in enforcing it, unless the terms had been certain, the consideration adequate, but it has their covenant of the 30th of October, 1843, to support it, and it appears to be bina small, if notan immaterial, modifition of the written agreement. The embarrassed circumstances of Leek, and his utter inability to discharge the liens upon his lands,' rendered it necessary to resort to a sheriff’s sale to mak.e the plaintiff a good title. In this way only could *243Dyson pay the purchase money with safety, or Leek specially perform his covenant.

There are many circumstances which go to show this was the intention and understanding of the parties. When they made the original agreement, they estimaled the part of the Anderson tract at 770 acres, and the Owens tract at 222 acres, making an aggregate of 992 acres; and it is not improbable, as this amount was so nearly one thousand acres, that they spoke about it as one thousand acres, and that the levy, advertisement, sale and deed of the sheriff were all made in conformity to this general estimate. On a resurvey it appears to have been ascertained that some of these estimates were erroneous, but not to the extent that was supposed on the trial at law. The testimony of the surveyor, Mr. Able, pretty well settles the question of quantity. Wheu he surveyed the land he had no plat of the Anderson tract, and had not only to take the whole of it, but the 15 acres on Wilson’s creek, (sold to Rowe,) parts of the tract, 93 acres, and 74 acres had been sold off to Col. Pickens, who reconveyed them to Dyson on the 11th July 1844; and when these parcels are deducted from the whole of the Anderson tract, 1007 acres, they leave 825 acres, which only exceed the estimate of the parties 75 acres. The re-survey of the Owens tract made the quantity 218 acres; according to this view, there were 1043 acres of the Anderson and Owens’ tracts liable to the judgment against Leek at the sheriff’s sale to Dyson. But whatever may have been the exact number of acres, the agreement was certain and specific as to the Anderson and Owens tracts of land, and as these were well known by the parties, a misapprehension or mistake as to the precise number of acres would be no sufficient ground, when the land could be identified and the boundaries were known by the parties, to invalidate their contract.

A deed made by Leek to certain trustees, for the purpose of paying his debts, &c. on the *2*March, 1843, describes the land as one tract, “ containing 1000 acres, more or less, &c., the same being composed of two adjoining tracts, one of which *1 bought of James Owens and the other of T. J. Dyson.”*From all the circumstances, it is not very probable that they were far mistaken as to the quantity, and it is now certainly established that there is not an excess of 200 acres, as appeared from the evidence on the trial at law. An agreement to make a good title by a sheriff’s sale is as legal and obligatory as if the party warranted to make it by his own deed: the making the bid at an adequate price and the payment of the purchase money on the part of the purchaser is a consummation of the contiact, and the other party must be bound to perform his part. Here the agreement of the 30th October, 1843, was the basis of the second agreement which they made a short time before *244the Sheriff’s sale, and the former certainly constituted suffi-c¡Qnt consideration for the latter, which was a mere modification of it, rendered peculiarly proper and expedient from the embarrassments oí Leek, and it would now be a fraud upon the plaintiff, after he has performed his part of the agreement, and accepted a defective deed from the Sheriff, tinder the misapprehension that it was sufficient to convey the title to the whole tract, containing the Owens as well as the Anderson lands, to permit the defendant to retain the possession, and to enjoy the rents and profits of the former, while his covenant and agreement bound him to make a good title to plaintiff, of the whole lands specified. The plaintiff is entitled to a specific perfoi manee of the defendant’s agreement, notwithstanding the verdict in the Court of Law, as the sheriff’s deed was defective and did not conform to the agreement of the parties; it was evidently made under a mistaken view .of what is technically conveyed, and it would be a reflection upon a Court of Equity, if such palpable errors and mistakes were not rectified, when the proof is so clear that now there is no reasonable doubt of the intention and understanding of the parties. The case is peculiarly within equitable jurisdiction, and it would have been error in the Court, of Law to have assumed jurisdiction of such a question, that could not have been made either by the pleadings or the evidence; it has therefore been properly brought'before this Court.

The next question is, shall the plaintiff be held accountable to Leek, for his hid, $6,500, or the amount specified in the agreement, $7,100. There is a deficiency in the evidence on this point that is sufficient to raise a strong doubt as to the specific amount that Dyson agreed with Leek to give at the sheriff’s sale. There are some circumstances that would seem to weigh in favor of the lesser sum. As soon as the land was put up, Dyson bid $6,500, and it was knocked off to him without Leek making any objection, and the bid charged to Dyson. But this might have been the case, if Dyson had bid $5,000, instead of $6,500; the evidence does not establish what Dyson was to bid for the lands, but the agreement very distinctly specifies the sum of $7,100 was to he given for them; if they intended to modify ihe contract in *this respect,*they ought to have done so in a legal way, by an instrument of equal solemnity; and upon the general principles of the admission of parol proof, it would be unsafe to rely on the frailty of memory to contradict and change what was set forth in writing with such clearness, and certainty; the adequacy ol the price bid is not sufficient'to raise the presumption that the parties agreed to substitute the $6,500, for the $7,100, winch Dyson stipulated to pay Leek for the lands.

The amount that Dyson bid is very conclusive proof that he thought he was purchasing both tracts, as it was said he *245had sold the Anderson tract to Lock for $5500, and it would have been an extraordinary thing to have given $1000 more for the same land at a sheriff’s sale; snch a supposition would also imply the absurdity of estimating the Owens tract at $600, which is certainly not more than half of the value at which it had been rated and was woith. As there is no sufficient proof that the second agreement, which was in parol, made an alteration of the amount to be paid by Dyson on his obtaining a perfect title to the lands by the sheriff’s sale, I think the written agreement of the parties ought to be adher-red to and carried into effect, and that Dyson should account for the amount therein stipulated. As Leek is insolvent, and has in violation of his contracts retained possession of parts of the land since Dyson’s purchase at sheriff’s sale, he must account for the rents to the plaintiff from that time, and their amount must be set off against the difference between the amount, sixty-five hundred dollars, that Dyson bid for the lands and paid to the sheriff, and the sum of seventy-one hundred dollars, which Dyson stipulated to pay Leek on his making him a good title.

It is therefore ordered and decreed, that Simeon Christie, sheriff of Edgefield District, a successor in office of Simeon Christie, late sheriff, do make and deliver to the plaintiff, T. J. Dyson, a deed of conveyance in fee of all the right, title, interest, and estate of A. G. Leek, in and to the said lands bought by the plaintiff under the executions in the sheriff’s office, *ob the*5th day of February, 1844, with such description of the same as to include both the Anderson and Owens tract of land ; and that the defendant A. G. Leek do forthwith deliver to the plaintiff the possession of said lands, and account to him before the Commissioner for the rents and profits of such parts thereof as have been in the possession or under the control of the said A. G. Leek since the date of said sale; and that the said T. J. Dyson do account for six hundred dollars, the difference of his bid at sheriff’s sale, (which he has paid,) and the amount specified in his agreement with' the said A. G. Leek and wife; and that the said rents and profits be set off, when ascertained, against the same; that the Commissioner make a report on the accounts between the parties to this Court; and that defendant A. G. Leek, pay the costs.

The defendant appealed and moved the Court of Appeals to reverse the Circuit decree of his Honor the Chancellor, on the following grounds:

1st. Because it is submitted that there was no competent evidence on the hearing of the cause, that it formed any part of the agreement or understanding of the parties at the time of entering into the said covenant, that in order to make good titles to the land in question, the same should be sold at sher*246iff’s sale. Bat that the fact is established otherwise, by the plaintiff’s bill, his answer to a former bill and the covenant It is therefore submitted that the decree is erroneous j[u assuming the fact that such sheriff’s sale formed a part of the understanding of the parties at the time of making said covenant.

2d. Because there was no competent evidence of an agreement between the parties subsequent to the date of the covenant, that the land was to he sold by the sheriff for the purpose of making titles to the complainant; and that whatever evidence was heard upon the subject, being parol declarations, was insufficient aud incompetent to establish an agreement affecting the title to lands.

3d. Because the receipt given by Martha Leek, the defen-damt’s wife, for one hundred dollars in part payment for said lands, being unauthorized by the defendant, was incompetent evidence, and the Court erred in admitting that receipt in evidence on the hearing of the cause.

4th. Because the decree sets up and decrees the specific performance of the said covenant of 30th October, 1843, which, the defendant submits, is erroneous. 1st. Because the execution of said covenant was obtained by the misrepresentation, by the complainant, of its contents. 2d. Because the complainant does not offer or tender in his bill to perform his part of the agreement as set forth in said covenant. 3d. Because the complainant does not in said bill ask or seek the aid of this Court to set up or decree the performance of said covenant, and the same is not prayed for in his bill; and 4th. Because to the bill heretofore filed in this Court by the defendant Leek and others, against said Dyson, praying, among other matters, that said covenant should be performed by said. Dyson, he the said Dyson in his answer, rejected and abandoned said covenant, and insisted ¡hat he was entitled to the whole of said land under his purchase for the price bid at the Sheriff’s sale, and denied the jurisdiction of the Court in the premises. It is therefore submitted lhat the said complainant is barred and estopped from having the performance of said covenant decreed for his benefit in the present cause.

5th. Because the complainant’s right to the said tract of land, called the Owens tract, has been decided and adjudged in the Court of Common Pleas, in the action of trespass to try titles, brought by the complainaut against the defendant for the same laud, as is stated in the defendant’s answer, and waspioved on the hearing; — theivfore the complainant is barred a:id estopped fiom litigating the same matter again in this Court.

6th. Because the decree is in other respects contrary to the law and evidence of the cause.

The complainaut also appealed, on the ground that the *247Chancellor erred in requiring him to account to the defendant for more than $6,500. "

Griffin, complainant’s solicitor.

Bauskett, defendant’s solicitor.

Dunkin, Ch.

delivered the opinion of the Court.

At the Sheriff’s sales for Edgefield, in February. 1844, the complainant purchased certain real estate of the defendant, Leek, for sum of sixty-five hundred dollars. In April following Leek filed his bill in this Court, alleging that., in October, 1843, being considerably indebted in the Sheiill’s office, he agreed to sell to the complainant the tract of land described in the pleadings for seven thousand one hundred dollars, which sum the complainant was to pay in the Sheriff’s office to satisfy his own and other executions; that the land was to be sold by the Sheriff, and bid off by the complainant, in order to give hint a clear title — that the complainant had accordingly attended the sale and bid off the land for sixty-five hundred dollars, and now insisted on keeping it at that price. The answer of the defendant to that bill positively denied that he had entered into any agreement upon the terms set forth; but admitted that he had agreed to purchase the land for $7100, upon receiving an unincum-bered title prior to 1st December, 1843 — that he held executions and other demands to a large amount against the defendant, Leek, and, after discounting what was due to him, he was to pay him $500 on the 1st May, 1844, and the balance on 1st January, 1845 — but he averred that Leek was entirely unable to comply with his contract of executing to him a complete and unincumbered title, — and that, after-wards, the land was fairly sold by the Sheriff, was purchased by the defendant at a fair price, and the proceeds of the sale fairly applied to the satisfaction of Leek’s debts. That the defendant (Dyson) is at a loss to perceive the ground upon which he (Leek) can support any claim against him ; he pleads to the jurisdiction, and insists that Leek has plain and adequate remedy at law. At June Term, 1845, the Court of Equity decreed that Leek’s bill should be dismissed, for want of prosecution, and that he should pay the costs.

The defendant, Leek, declining to surrender the premises, an action of trespass to try titles was instituted against him by the complainant, in the Court of Common Pleas, for Edge-field District. At the call of the case, Spring Term, 1846, the defendant endeavored to postpone the trial, but the motion was successfully resisted by the complainant. The only question on the trial was as to the indentity of the land purchased by the complainant at the Sheriff’s sales, in February, 1844. The land claimed by the plaintiff consisted of two tracts, viz: the Anderson tract and the Owens tract. *248The evidence offered at the trial is reported by the presiding jU(]ge- appeared that Leek lived on the Owens tract, and 'cultivated on both tracts, both before and after the Sheriff’s sale. The terms of the description, in the Sheriff’s deed, might be satisfied by including the Anderson tract alone, or by including both tracts. The Jury found for the plaintiff only the Anderson tract, and, on the hearing in the Appeal Court, the motion for a new trial was dismissed.

2 R543 R’

This bill was thereupon filed by the complainant, in which he alleges, among other things, that the advertisement of the Sheriff described the land to be sold as that on which the defendant lived, and that this was in accordance with the levy — and that Leek lived on the Owens tract. The prayer of the bill is that the Sheriff’s deed may be reformed so as to describe with more precision “the Owens as well as the Anderson land,” or “ that a specific performance may be decreed of the contract, by which the Owens tract of land was sold to the complainant at said Sheriff’s sale, and that Leek may be ordered and directed to deliver the said Owens tract to the complainant.” No other relief is sought by the bill, nor is a case made for any other relief. The complainant in his answer to Leek’s bill had denied any obligation under the contract of October, 1843, and insisted on his purchase from the Sheriff, and the bill was thereupon dismissed. He insists now on that purchase alone, and denies his liability for any other sum than that agreed to be paid to the Sheriff, and insists that, on that contract, he was entitled to the Owens as well as the Anderson tract of land. The defence is that the complainant has a plain and adequate remedy at law, and moreover, that the matter has been already adjudicated against the complainant by a tribunal of his own selection.

Standing upon his purchase from the Sheriff, it seems sufficiently clear that the complainant occupies the same position — is entitled to the same rights, as any other purchaser, and no more. He is entitled to all that the Sheriff proposed to sell, and did actually sell.' At the hearing on the circuit, as reported by the Chancellor, it appeared that the Sheriff’s advertisement described the land as one thousand acres where the defendant lives, &c. On the trial at law, as well as in this Court, it was shown that *Leek*lived ón the Owens tract. The only inquiry is whether it was not perfectly competent for the complainant to have esfhblished at law all that he has proved in this Court — to have offered in evidence the Sheriff's advertisement in order to 'show what was meant by the description in his deed. If it was competent, and the complaiuant omitted ór neglected to adduce the testimony, it furnishes no ground for the interference of this Court.

The principle pn which parol and extrinsic evidence is sometimes admitted, to aid in the construction of written *249instruments, is very well established, although difficulty is experienced in its application. The judgment of the Court is simply declaratory of what is *in*the instrument. The ques-1" tion in the construction of written instruments is not what was the intention of the parties, but what is the meaning of the words they have used. In conformity with this principle, parol evidence has been held admissible to determine person or thing intended, where the description in the ment was insufficient for that purpose. In a devise of the manor of Dale, where the testator had two manors of that name, North Dale and South Dale, parol evidence was admissible as to which was meant.

WilifsTM.

2Rich. K. 373-

In the Sheriff’s deed to the complainant the land was described as one thousand acres, more or less, adjoining lands of F. W. Pickens, Proctor and others. This description would be equally applicable, according to the report of the presiding Judge, whether only the Anderson tract, or both the Anderson and Owens tracts, were sold by the Sheriff. On general principles, therefore, it would seem competent for the plaintiff to remove, or explain, this latent ambiguity, by proving, from the Sheriff’s advertisement, that the land exposed to sale was that on which the defendant lived, and that he lived on the Owens tract. But, in *Elfe v. Gadsden, it*was expressly adjudicated that the Sheriff’s advertisement of the property for sale may be given in evidence to explain a latent ambiguity. That case was determined by the Court of Appeals prior to the hearing of this case at law. It cannot, therefore, be doubted that the Sheriff’s advertisement was admissible in evidence on the trial tit law. Prioi to that hearing the complainant would have required no aid from this Court in order to maintain his legal right, both to the Owens and Anderson tracts of land, under the purchase from the Sheriff. The Law Court of Appeals held that the plaintiff had himself *to*blame for *taking a*deed with an imperfect description. But if he has had it in his power to supply that defect in the Court of Law, and has failed to avail himself of it, it would be of evil precedent and against well settled adjudications to permit the same matter to be litigated in this tribunal.

It is ordered and decreed that the decree of the Circuit Court be reversed, and that the bill be dismissed.

JohnstoN, Ch. concurred.

*Decree reversed.*