#### DEN ON DEMISE OF WILLIAM MORRISEY AND OTHERS vs. JOHN LOVE.

Where a constable returned on an execution against A. B-“levied on land to be upwards of 100 acres, whore R H. lives on — no other property to be found” and it appeared in evidence that A. B. had two tracts of land in the county, each of about 100 acres, on one of which he lived himself and on the other J- H. lived — and that the latter was known as the land of A. B. on which J. II. lived — Held that the want of certainty in the description of the land levied on was not aided by the parol evidence, and that the party claiming by purchase at a sale made under that levy acquired no title.

Where the identity of land levied on by a constable with that claimed under a purchase under that levy is sought to be established by parol evidence, the enquiry is one of fact for the jury, not of law for the court.

The cases of Borden v Smith, 3 Dev. & Bat. 34. Huggins v Ketclmin, 4 Dev. & Bat. 419, and Smith v Low, 2 Ired. Rep. 457, cited and approved.

Appeal from the Superior Court of Law of Duplin county, at Fall Term, 1843, his Honor Judge Pearson presiding.

On the trial of this ejectment the possession of the defendant was admitted. The plaintiff relied entirely on the title of the heirs of James Joiner, the lessors in the third count of the declaration. To support this title the plaintiff introduced a grant from the State for the land in dispute, being a tract of about one hundred and ten acres, to James Joiner in the year 1803 — and proved that the said James Joiner had died intestate, and that the lessors of the plaintiff were his heirs at law.

For the purpose of shewing title out of the lessors of the plaintiff, the defendant offered in evidence a magistrate’s warrant, judgment and execution, in favor of Jonathan Gore., against the said James Joiner, in the year 1806. He also offered in evidence a return made by the constable on the said execution in the following words, viz. “Levied on land supposed to be upwards of 100 acres where Richard Heath lives on. No other property to be found.” This return was transmitted by the justice to whom it was made to the *39County Court, who ordered a venditioni earponas to issue thereon. The venditioni exponas, reciting' the levy / ' o j made by the constable, was issued directed to the sheriff— the sheriff sold by virtue thereof and conveyed the land to one Armstrong. To sustain the levy made by the constable, the defendant proved that, at the time of the levy, James Joiner owned but two tracts of land in Duplin county, one tract of 110 acres lying on-- creek-, upon which.said Joiner lived, and another tract of 110 acres adjoining the other, upon which James Heath lived (which is alleged to be the tract in dispute) — that this last tract was not situated oh any water course, but lay in a level, pocoson, pine barren, and was then known as a tract belonging to James Joiner, upon which James Heath lived (the said James being the lessee of Joiner.) The plaintiff insisted, that the description in the levy was not sufficiently specified; and made other objections to the record produced by the defendant, which it is not necessary to state particularly, as they are not adverted to by the Supreme Court in delivering their opinion. The presiding judge was of opinion that the levy of the constable, as explained by the evidence, was sufficiently explicit, and the jury, under his direction, found a verdict for the defendant. A motion for a new' trial having been refused, the plaintiff appealed to the Supreme Court.

Reid for the plaintiff

contended that the return of the levy of the constable was not sufficiently certain in its description, as required by the act of Assembly, and that the evidence did not correspond with the description in the re-, turn of the levy — and cited Hudgins v Keichmn, 4 Dev. & Bat. 414 — Borden v Smith, 3 Dev. &■ Bat. 34 — Smith v Low, 2 Ired 45. He also contended that the identity of the description, as it appeared on the return of the levy and as it was explained by the parol evidence, was not a question of law for the court but a question of fact for the jury ; and cited While v White, 4 Dev. 257.

No counsel in this court for the defendant.

*40Gaston, J.*

Thove would probably be no serious difficulty in the way of affirming the judgment of the Superior Court, but for the objection taken to the certainty of the" lcfry. The constable’s return is “levied on lands supposed to be upwards of 100 acres, where Richard Heath lives. — ■ No other property to be found.” To sustain this levy, the defendant proved that James Joiner (the defendant in- the execution) owned but twof tracts of land in the county,-each of 110 acres and adjoining to each other, that on one of these' he' resided himself, and that on the other (which was alleged to be the tract levied on, and which is the tract now in dispute) James Heath lived as Joiner’s lessee; that the former tract was situated on a creek, and the latter was not situate on any water course, but lay in a flat, poeoson, pine barren, and was known as a tract belonging to James Joiner, whereon lames Heath lived. An objection being taken by the plaintiff to the sufficiency of the levy, his Honor held that the description of the land therein, as explained by this evidence, was sufficiently specific.

The plaintiffexcepts to this opinion for two reasons f first, for that the extrinsic evidence set forth has no tendency to explain or supply the defective description in the return ; and secondly, for that, if it Had, whether such explanatory or supplementary' evidence identified the subject matter of the levy was a question of fact for the jury, and not one of law for the court. In our opinion both these objections-are well founded.

The act (Rev. Stat. eh. 62, sec.-16,) prescribes, that where the constable makes a levy on land, he shall make return thereof to" the justice “ setting forth what land he ha's levied on, where situate, on what water course, and whose land it is adjoining.” The' courts have decided, that it is not indispensable that these directions of the statute should be iite-*41rally observed; but at the same time they have held that, where the return does not set forth all the marks of descrip-r tion prescribed by the statute, it is necessary for the claimant under the levy to shew clearly, by extrinsic evidence, that it does adequately describe the land, and that it describes it as satisfactorily as if it had in terms conformed to the statute. Borden v Smith, 3 Dev. &. Bat. 34. Huggins v Ketchum, 4 Dev. & Bat. 419. Smith v Low, 2 Ired. 457. And by the same decisions it is settled, that, where it is attempted to help a return by such extrinsic evidence, the en-quiry, whether the land levied on be thereby identified, is an enquiry of fact for the determination of the jury.

We are unable in this case to lay our hands on any'evi-denee, which could warrant a jury in declaring the land identified by the description in the return. As the execution authorized the constable to levy on the land of James Joiner, and not on that of any other person, we may assume that the return should be understood, as though it had in terms described the land levied on as that of Joiner. So understood, the description is “ land of James Joiner supposed to be upwards of 100 acres, whereon Richard Heath lives.” Apart of this description, as applicable to any tract of Joiner’s, is contradicted by the evidence. From that it appears, that James Joiner had no land, on which Richard Heath lived. The parol evidence, far from aiding or explaining this part of the description, proves it to be false. — ■ It is not shewn that the land in question ever bore this description ; on the contrary, the evidence is, that thefland was known as the land of Joiner, whereon James Heath lived. Whether this false description — although it is apparently an essential mark of the land — ‘may not be rejected, we need not stop to enquire. For, if this be admitted, then the description is “land of James Joiner supposed to be upwards of 100 acres.” Where is the parol evidence to supply this defective description 1 James Joiner had two tracts, each containing upwards of 100 acres. There is nothing to shew to which of these — if to either — the levy applied.

It is the opinion of this court that the judgment of the *42Superior Court should be reversed, and that a new trial ought to be awarded.

Per Curiam, Judgment reversed and new trial awarded.

*

Note by (he Reporter. This was tlie last opinioh delivered by Judge Gastos- in the Supreme Court. He read it in court on Saturday, the^SOth of January, and died on the following Tuesday.