{
  "id": 8698328,
  "name": "DEN ON DEM. of LUKE HUGGINS vs. JONATHAN KETCHUM",
  "name_abbreviation": "Den on dem. Huggins v. Ketchum",
  "decision_date": "1839-12",
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  "first_page": "414",
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    "parties": [
      "DEN ON DEM. of LUKE HUGGINS vs. JONATHAN KETCHUM."
    ],
    "opinions": [
      {
        "text": "Daniel, Judge.\nThe lands described in the declaration formerly belonged to James Wade. He\u2018, on the 16th day of March, 1832, conveyed said lands to Lloyd, by a deed properly proved and registered. The defendant claims under Lloyd. The lessor of the plaintiff claims title by virtue of several judgments and executions against Wade \u2014 a sale, and sheriff\u2019s deed to himself. The two County Court executions, The Bank v. Wade and Huggins v. Wade and thejusti-ces\u2019 execution, Jesse Webb v. Wade, are each tested after the date of the deed to Lloyd; therefore they may be laid out of the question, as the plaintiff can derive no title under them. The plaintiff produced also a justice\u2019s judgment, Jno. Waison v. Wade, and an execution signed by the justice, tested on the 27th day of November, 1830. At the foot of the said execution, there is this entry, \u201cMarch 1st, 1832, execution renewed.\u201d There is no justice\u2019s name signed to this attempted renewal of the execution. We think that the signature of a justice is absolutely necessary to an alias, as well as to the original execution, on a justice\u2019s judgment. The levy of the constable, therefore, under this entry, was without authority and void. The original execution at the end of three months became defunct \u2014 the act of Assembly directing it to be returned in three months from the date thereof. We think that the levy and sale, under this judgment, execution and- proceedings thereupon, gave the plaintiff no title.\nThe lessor then produced a justice\u2019s judgment, obtained by James Riggs v. Wade, and an execution on the same tested 10 March, 1832, and on the same day the constable made this return thereon \u201cMarch 10th, 1832, this execution levied on all of the lands of James Wade, lying on Q.ueen\u2019s creek.\u201d There was notice issued to Wade, which was served in the time prescribed by law, an order of sale by the County Court, and a venditioni exponas. We are, however, of the opinion that the constable\u2019s levy on this execution must be regarded prima facie insufficient to sustain the venditio-ni. The law requires, that for want of goods and chattels to satisfy the execution, then the officer shall levy on lands and tenements, setting forth on the execution what lands and tenements he has levied on, \u201cwhere situate, on what water course, and whose land it is adjoining.\u201d In Borden v. Smith, 3 Dev. & Bat. 34, we have said when an execution upon a justice\u2019s judgment isle\\ied upon land, and returned to the County Court, it is essential to the validity of the order, which the court is authorised to make, to sell the land levied on, that the land should be particularly described; and a levy generally upon the defendant\u2019s \u201clands\u201d without fur-j o j x ther specification or description, will not support such order nor \u00a1Jqq saiQ made under it. Queen\u2019s creek may run through the whole extent of the county: Wade may have had many tracts of land, and at different places on this creek. Such a description recited in the venditioni, does not inform the sheriff what lands he is to sell. The sale was at the Court House, the people probably would not know from this dis-cription where the lands lay. The neighborhood, the quantity, the quality and every other circumstance that a prudent bidder would like to know before he parted with his money, would seem to be wanting. By such a levy, a defendant might be deprived of valuable lands for a mere trifle \u2014 it is too much like guess work. We do not mean to say that the levy must be in the very words of the act of Assembly.\u2014 But that a description containing a fart only of that prescribed in the act, must be taken to be insufficient in point of the certainty thereby required, until it be shewn, as a fact, that it identified the land levied on as effectually as it would have been identified by a description conforming to that prescribed in the act. As no such evidence is stated to have been offered in this case, we hold that the Judge erred in instructing the jury that this .venditioni conveyed a valid authority to sell. It is true that Wade might have moved the County Court to stay the order of sale for the uncertainty in the levy. But we do not think, that his omitting to make such a motion, cures the defect in the levy.\nThe lessor produced also a justice\u2019s judgment in favour of Elijah Riggs v. James Wade, with an execution on the same, tested August 23rd, 1831: execution renewed January 16th, 1832, and signed by the justice. The officer returned on this execution as follows: \u201cFebruary 17th, 1832, this execution levied on all the lands of James Wade, lying on the head of Ketchum\u2019s mill pond, adjoining the'lands of said Ketchum.\u201d Here, we may say that the Act of Assembly was substantially, nay literally complied with, except in the omission of Ketchum\u2019s Christian name, and this was unnecessary, as he is described as the same .Ketchum whose mill pond had been before mentioned. All the proceedings up to the sheriff\u2019s sale under this levy were agreeable to law. Un-J \u00b0 der this venditioni, the Sheriff was authrised to sell all the lands of Wade, lying on the head of Ketchum\u2019s mill pond, adjoining the lands of the said Ketchum. And if Huggins bought, and the sheriff conveyed these lands under that ven-ditioni, a good title passed thereby. There were several objections made to the plaintiff\u2019s recovery. First, that the constable\u2019s levy did not bind the land. Answer, we are of the opinion, that the levy under Elijah Riggs\u2019s execution did bind the land; and if that land was sold under the venditioni ex-ponas, the lien had relation back to the time when the levy was made, so as to defeat the sale made afterwards by Wade. Lash v. Gibson, 1 Murp. 266. Second objection, the description of the land in the levy is too indefinite and vague. Answer, the description in the levy under Elijah Riggs\u2019s execution, is almost in the very words of the Act of Assembly, substantially corresponds with it, and therefore is not too vague. Third objection, the sale was fraudulent and void by reason of the sheriff\u2019s setting up too many parcels of land at the same time. Answer, the sheriff had authority to sell \u201call the lands of Wade, lying on the head of Ketchum\u2019s mill pond, adjoining the lands of the said Ketchum.\u201d If the lands embraced in that description, comprehended more tracts or parcels of land than one, a sale en masse by the sheriff will still be supported, because it is warranted by his execution, and no fraud is shewn either in the sheriff or the purchaser. Den ex dem. Wilson v. Twitty, 3 Hawks, 44\u2014Den ex dem. Thompson v. Hodges, 3 Hawks, 51. Fourth objection, too many parcels of land are united in the same declaration, and no recovery can be had. Answer, the quantity of the land declared upon need not correspond with that which the plaintiff claims. He may declare for an indefinite number of messuages, and he will recover according to the quantity to which he proves title. 2 Leigh\u2019s N. P. 886.\u2014 Adams on Eject. We see no force in this objection, especially as it appears that all these tracts adjoined each other and constituted in fact but one tract in the possession of the defendant. Fifth objection, the defendant was proved to be in the possession of only one of the messuages, viz, that on which he lived, and the plaintiff was not entitled to recover beyond that., Answer, the defendant had cultivated the other tracts of land for turpentine, in the usual way, for two years. The witnesses proved that he was in this way in possession of all the land. We think this possession was all that was necessary for the plaintiff 'to prove in this action. Sixth objection, the sheriff\u2019s deed does not recite the executions by virtue of which the lands were sold; and the description of the land in the sheriff\u2019s deed is too indefinite. Answer, as to the first branch of this objection, the sheriff, in his deed, after specially reciting; the bank execution, goes on to say that he sold by virtue of this, \u201c and also of other jfien facias and venditioni exponas.\u201d If a sheriff sell under an execution authorising him to sell, although in his deed to the purchaser he make an erroneous recital of the power under which he sells, yet his deed is good and passes the title. Den ex dem. Hatton v. Dew, 3 Murph. 260. The recital is not an essential part of this deed; it affirms no fact, and will not amount to an estoppel. This deed, however, does recite that the sheriff sold under venditioni expoliases, That he sold under Elijah Riggs\u2019s venditioni must be presumed, we think, until the contrary be shewn, if he had that execution in his hands at the time, and sold the lauds thereby directed to be sold. The second branch of this objection is, that the description of the laud in the sheriff\u2019s deed is too vague and uncertain. The words of the deed are, \u201c I do hereby bargain and sell unto Luke Huggins, his heirs and assigns, all the right, title and estate which the said James Wade has in and to a certain piece of land lying and being in the county of Onslow, on Qmeen\u2019s creek, being all the land which the said Wade owned on said creek; to have and to hold, <fcc.\u201d The description of the land in a deed is certainly of great importance. As to which, it is evident that nothing can be described but by some general denomination applied to the individual subject, by the addition of its proper name, or of some peculiar circumstances of locality, quantity, quality, possession or title. Burton on real property, 81. In this deed there are peculiar circumstances of both locality and title; it is all the right and title in and to a certain piece of land of James Wade, lying on Queen\u2019s creek, in county, being all the land said Wade owned on said creek. That is certain which can be rendered certain. We must say, however, that this description is far from being as particular as we could wish to see in sheriffs\u2019 deeds. The jury have found that all the lands described in the declaration are covered by this deed: We, however, think that only the land mentioned in the levy under Elijah Riggs\u2019s execution could have been rightfully sold by the sheriff, or conveyed to the pu rchaser. Now, whether that land be in fact the same with the land described in the plaintiff\u2019s declaration \u2014 or be a part thereof only \u2014 or be in fact land situate elsewhere and no pait of it \u2014 does not appear. And as we think that the Judge erred in holding that all the venditionis exhibited in evidence were sufficient in law, and it may be that the verdict establishing the plaintiff\u2019s title to the laud contained in the declaration was founded upon the other venditionis, we must reverse the judgment, and direct the Court below to award a venire de novo.\nPer Curiam. Judgment reversed.",
        "type": "majority",
        "author": "Daniel, Judge."
      }
    ],
    "attorneys": [
      "J H. Bryan for the defendant.",
      "J. W. Bryan for the lessor of the plaintiff."
    ],
    "corrections": "",
    "head_matter": "DEN ON DEM. of LUKE HUGGINS vs. JONATHAN KETCHUM.\nThe signature of a justice is absolutely necessary to an alias, as well as 1o an original execution on a justice\u2019s judgment. Hence an entry of \u201c execution renewed\u201d without the signature of a justice, at the foot of a dormant justice\u2019s execution, gives no authority to the acts of an officer under it.\nThe levy of a justice\u2019s execution upon lands, under the act of 1794, 1 Rev. Stat. ch. 62, sec. 16, need not perhaps be in the very words of the act; but a description containing a fart only of that prescribed in the ad must, be taken to be insufficient in point of the certainty thereby required, until it be shewn as a fact that it identified the land levied on, as effectually as it would have been identified by a description 'conforming to that given in the act. Hence a levy upon \u201call the lands of the defendant, lying on Queen\u2019s creek,\u201d without any such evidence of identity, is not sufficiently specific to authorise the court to make an order of sale, or if such order be made, to support a sale under it.\nThe levy of a justice\u2019s execution upon \u201call the lands of the defendant, lying on the head waters of Ketchum\u2019s mill pond, adjoining the lands of said Ketchum,\u201d is substantially, if not literally, a compliance with the requisitions of the act of 1794.\nIf a justice\u2019s execution be levied upon land and rqtprned to court, and the land be sold under a venditioni exponas, issued upon an order made by the court for that purpose, the lien has relation back to the time of the levy, so as to defeats sale made afterwards by the defendant.\nThe case of Lash vs. Libson, 1 Murph. S66, approved.\nWhere an execution authorises the sheriff to sell all the lands of the defendant lying on the head of a particular mill pond, and adjoining the lands of a particular person, if the lands embraced in that description comprehend more tracts than one, a sale en masse will be supported in the absence of fraud on the part of the sheriff and purchaser.\nThe cases of Wilsonss. Twltty, 3 Hawks, 42, and Thompson vs. Hodges, Ibid 51, approved.\nDec. 1839\nla an action of ejectment, the quantity of land mentioned in the declaration, need not correspond with that which the'lessor of the claims. He may declare for an indefinite number of tracts of land\u2014 and recover according to the quantity to which he proves title; especial-1ly when it appears that all the tracts adjoin each other and constitute in fact bat one tract in the possession of the defendant.\nIf a sheriff sell land under an execution authorising him to sell, his deed is good, and passes the title, although in his deed to the purchaser he make an erroneous recital of the power under which he sells: And that he sold under a particular execution must be presumed, until the contrary be shewn, if he had that execution in his hands at the time, and sold the lands thereby directed tobe sold.\nThe case of Haitim vs. Dew, 3 Murph. 260, approved.\n\u25a0 A description in a sheriff\u2019s deed of \u201call the right, title and estate which the said J. W.\u201d (the defendant) \u201chas in the county of Onslow, on Queen\u2019s creek, being all the land which the said .T. W. owned on said creek,\u201d though far from being so particular as could be wished in a sheriff\u2019s deed, is not, it seems, so indefinite as to 'make the deed void . on that account. ..\nIf a party claimed under a sheriff\u2019s sale, made by virtue of several district judgments and executions, and the judge instructed the jury that if the executions were in the hands of the sheriff at the time of the sale, he had authority to sell, and the jury thereupon found a general verdict for the plaintiff;- and it afterwards appear that only one of the executions was sufficient to authorise the sale, but whether that authority extended to all the lands described in the sheriff\u2019s deed, and claimed by the party, or to a part of them only \u2014 or vyhether it extended to them at all, is not shewn, a new trial will be granted.\nThis was an action of Ejectment, brought to recover the possession of several tracts of land set forth in the declaration.\nUpon the trial at Onslow, on the last circuit, before his Honor Judge Settle, it appeared that the lands once belonged to James Wade, who, on the 16th day of March, 1832, conveyed them by a deed, properly executed, to one John Lloyd, under whom the defendant claimed. The lessor of the plaintiff set up title under several judgments and executions against Wade \u2014 a sale by the sheriff under said executions, and a deed from the said sheriff to himself; dated the 7th of February, 1833. The first judgment produced by the 'plaintiff\u2019s lessor was in favor of the State Bank, obtained at August Term, 1832, of Onslow County Court, upon which an execution issued tested of that term, and afterwards an alias tested of November term. The second was a judg-iQ favor of the plaintiff\u2019s lessor himself, obtained at the November Term of the .said County Court, and an execution jssued tested of that term. The third was a justice\u2019s judgment, in favor of Jesse Webb, given on the 10th of March, 1832, an execution issued thereon the 27th of the same month, and levied the same day on Wade\u2019s lands, which was returned to Court and the justice\u2019s judgment affirmed at the ensuing November Term, and a venditioni exponas issued tested of that term. The fourth was a justice\u2019s judgment, in favour of John Watson, granted the 26th of November, 1830, an execution issued thereon the 27th of November, 1830, at the foot of which there was an entry in the following words: \u201c March 1st, 1832, execution renewed,\u201d without the name of any magistrate signed to it. On this paper was endorsed by a constable \u201c March 7th, 1832 \u2014 this execution levied on all the lands of James Wade, lying, on the head of Queen\u2019s creek, on the west side of said creek.\u201d The papers were then returned to the County Court at its May term, from which a notice issued to the defendant; and at November Term ensuing, the justice\u2019s judgment was affirmed, and a venditioni exponas issued tested of that term. The fifth was also a justice\u2019s-judgment in favor of James Riggs, granted the 11th of February, 1832, on which an execution issued March the 10th, 1832, which was the same day \u201c levied on all the lands of James Wade, lying on Queen\u2019s creek,\u201d and returned to May term ensuing of the Court. A notice to the defendant was issued from that term, and at the November Term following the justice\u2019s judgment was affirmed and a venditioni exponas was issued tested of that term. The sixth was also a justice\u2019s judgment in favour of Elijah Riggs, granted in July, 1831, on which an execution issued August the 23rd, 1831, which was renewed January the 16th, 1832, and on the 17th of February, 1832, was \u201clevied on all the lands of James Wade, lying on the head of Ketchum\u2019s mill pond, joining the lands of said Ketchum,\u201d and returned to the County Court at its May Term, 1832, from which a notice issued to the defendant, and at the November term following the justice\u2019s judgment was affirmed, and a venditioni exponas issued tested of that term. The sheriff\u2019s deed, after reciting the execution in favour of the State Bank against James Wade, and that by virtue thereof he had levied upon lands thereinafter \u201c more particularly described of the goods and chattels, lands and tenements of James Wade,\u201d ed as follows, \u201c and on the 4th day of February instant, sold the same to Luke Huggins, he being the highest bidder, at and for the price of $20 25-100; and also other fi. fas., ven-ditioni exponas: Now, know all men by these presents, that I, Peter Harrell, sheriff as aforesaid, by virtue of, and in obedience to, the aforesaid writ of fieri facias, and by authority of my said office, for and in consideration of the said sum of twenty dollars and twenty-five cents, to me in hand paid by the said Luke Huggins, at and before the sealing of these presents, the receipt whereof is hereby acknowledged, have bargained and sold, aliened, set over and confirmed, and I do hereby bargain, sell, alien, set over and confirm unto the said Luke Huggins, his heirs and assigns forever, all the right, title and estate which the said James Wade has in and to a certain piece of land lying and being in the county of Ons-low, on Queen\u2019s creek, being all the lands which the said Wade owned on said creek,\u201d &c. After the lessor of the plaintiff had produced and read in evidence the judgments, executions and deed above mentioned, he called a witness to prove that at the commencement of this action,,the defendant was living on the land in dispute. The witness testified that the defendant\u2019s houses and clearing were exclusively upon the parcel of one hundred acres first described in the declaration; but that the pines were boxed upon and throughout the several other parcels as described; and that all the boxes were tended or cultivated for turpentine by Ketehum, at the time of bringing the action, and for two years prior thereto. This witness also proved that all the parcels of land described in the declaration were adjoining to each other, and were lying upon the waters of Queen\u2019s creek in Onslow county; and that there was no other possession of any part of said lands than that held by the defendant.\nTh.e recovery was objected to on the part of the defendant, because\n1st. The levy of a constable on land did not bind the same, anda sale by the defendant in execution was good notwithstanding*. &\n2ndly. The descriptions of the land in the levies were too indefinite and vague to pass the estate.\n3rdly. The sale was fraudulent and void, by reason of the sheriff\u2019s setting up. too many separate parcels at the same time.\n4thly. Too many parcels of land were united in the same declaration, and no recovery could be had.\n5thly. The defendant was proved to be in possession of only on\u00e9 of the messuages, viz, that on which he lived, and the plaintiff was not entitled to recover beyond that.\n6thly. The sheriff\u2019s deed did not recite the executions by virtue of which the lands were sold; and the description of the land in the sheriff\u2019s deed was too indefinite.\nThese objections were overruled by his Honor, and the jury were instructed to enquire whether the several writs of venditioni exponas and fieri facias, which were produced and read on the trial, were in the hands of the sheriff at the time of the sale; and if they were, that he had authority to sell. The jury were further instructed that if they believed from the evidence that the defendant, Ketchum, dwelt upon one of several contiguous parcels of land, and cultivated the others for turpentine in the usual way, as testified to by the , witness, he was in possession of all, and the plaintiff\u2019s lessor was in this action entitled to recover all.\nThe jury returned a general verdict in favour of the lessor of the plaintiff, and the defendant moved for a new trial upon the ground of misdirection by the Court; which being refused, and judgment given, he appealed.\nJ H. Bryan for the defendant.\nJ. W. Bryan for the lessor of the plaintiff."
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