{
  "id": 8682972,
  "name": "Den on the demise of ELIJAH CHASTEEN v. WILLIAM PHILLIPS",
  "name_abbreviation": "Den on the demise of Chasteen v. Phillips",
  "decision_date": "1857-08",
  "docket_number": "",
  "first_page": "459",
  "last_page": "463",
  "citations": [
    {
      "type": "nominative",
      "cite": "4 Jones 459"
    },
    {
      "type": "official",
      "cite": "49 N.C. 459"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
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  "last_updated": "2023-07-14T21:20:10.197681+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Den on the demise of ELIJAH CHASTEEN v. WILLIAM PHILLIPS."
    ],
    "opinions": [
      {
        "text": "Pearson, J.\nThe levy, (supposing it to be sufficient), and return of the executions, gave the County Court jurisdiction, so as to make applicable, the rule, omnia presumwntv/r rite esse aeta, in favor of a third person, who is a purchaser under the sheriff\u2019s sale. The venditioni exponas, gave the sheriff power to sell.- If the sale, made under it, could be treated as a nullity, by reason of a supposed irregularity in not setting out, either upon the record of the County Court, or in the vendi-tioni exponas, what disposition had been made of the personal property levied on, all prudent persons would be deterred from bidding for land at sheriff\u2019s sale. Accordingly, it is established, by several decisions of this Court, to be agaiustpublic policy to require persons, who are not parties to the proceedings, to see, at their peril, that all the'preliminary proceedings have been taken, and duly set out; such as notice to the debt- or \u2014 advertisement by the sheriff \u2014 a regular postponement of the sale, where it is made on any day of the return term other than Monday \u2014 that the debtor had no goods and chattels, or that the goods and chattels, levied on-, had been other-wis&dnly disposed of. Jones v. Austin, 10 Ire. Rep. 20; Reid v. Largent, ante, 454.\nIn regard to the sufficiency of the description of the land, set out in the levy, we do not concur in the view, taken by his 'Honor. The statute requires that the levy should specify the land, \u201c where situate \u2014 on what -water course, and whose land, adjoins. \u201d Huggins v. Ketchum, 4 Dev. and Bat. Rep. 414; Smith v. Low, 2 Ire. Rep. 457, and other cases, decide that the precise mode of description, used in the statute, need not be pursued, but that any other mode of description will answer, provided the land is as clearly identified by it, as it would be if the description required by the statute, had been given ; for instance, the debtor\u2019s home place, or Lynn place. This departure is permitted, on the ground, that the object of the statute, in requiring a description, being to inform the sheriff what land he was to sell, and to enable bidders, and other persons, to know what land was offered for sale* ma,y be as well effected by other modes of description, as that indicated in the. statute j and, consequently, another mode of description will suffice, provided the land is thereby as well identified.\nThe description, made in the levj\" in this case is, \u201c three tracts of land, taken as the property of Leonard and \"William Higdon, on Caney Fork, containing three hundred and sixty acres.\u201d This description is as vague and indefinite as could well be ; it describes nospecific land \u2014 -does not even say whether the three tracts are in detached parcels, or adjoin each other \u2014 or how much each contains. Several witnesses swear, that one of the tracts was well known in the neighborhood, as the property of Leonard Higdon \u2014 was Ms residence, and that he owned no other land in the county, and they conclude, \u201cthat the.land would be as well known by the description in the levies, as by any other, and as well known as if described according to the requisitions of the statute.\u201d This conclusion could not be established by the oath of fifty witnesses ; for the simple reason, that it is impossible for it to be true.\nThe witnesses, and his Honor, in the Court below, fell into error by not distinguishing between that which is a fart c-f the description, and that which is merely evidence of a collateral fad. If the description had contained these additional words, \u201c one of the said tracts, being the residence of Leonard Hig-don, and the other two tracts, adjoining the same,\u201d then the facts, stated by these witnesses, would have established the truth of the conclusion; but without this addition to the cle scription, the fact, that Leonard Higdon resided on one of the tracts, was simply collateral, and the insufficiency of the description could be in nowise aided by it. Plow could that fact enable the sheriff to tell what land he was to sell, or enable bidders, or other persons, to know what land he was selling? They had to he governed by the description set out in the levy, and that, as we have seen, was too vague and indefinite to identify,any land.\nIf, although the description in a levy is not sufficient, a sale under it can bo made good by proof of facts which are not set out as part of the description, the effect will be to defeat the operation and purposes of the statute, and allow land to be sold without the safe-guards which the Legislature has provided against fraud and surprise. Philipse v. Higdon, Busb. Rep. 380.\nThe Court erred in leaving \u201cthe point, as to the sufficiency of the proofs to identify the land, to the jury as a question of fact,\u201d and the plaintiff was entitled to the instruction asked for, \u201c that the evidence was, in law, insufficient to establish that point,\u201d because there was no part of the description to which the evidence was applicable. In directing the jury to inquire \u201cwhether this description is as certain, (i. e. locates the land as definitely, as that required by the statute,\u201d) his Honor, evidently, confounds the description in the levy, with the proof offered in regard to matter, to which no part of the description referred. Venwe de novo.\nPub OubiaM. Judgment reversed.",
        "type": "majority",
        "author": "Pearson, J."
      }
    ],
    "attorneys": [
      "Baxter, for the plaintiff.",
      "Lf. W. Woodjm, and Gaither, for defendant."
    ],
    "corrections": "",
    "head_matter": "Den on the demise of ELIJAH CHASTEEN v. WILLIAM PHILLIPS.\nA purchaser at a sheriff\u2019s sale under a venditioni exponas, is not bound to show any tiring in relation to the disposition of property, which had been levied on under the previous execution.\nA levy, endorsed on a justice\u2019s execution, as being made \u201c on throe tracts of land, containing three hundred acres, on Caney Pork,\" is not sufficiently definite to comply with the requisites of the Act of Assembly.\nPacts, merely collateral to the description contained in a levy endorsed on a justice\u2019s execution, cannot be adduced to extend, or help out, an insufficient description of the land levied on.\nAotioN of ejicCtment, tried before Manly.\u00bb L, at the Fall Term, 1855, of Macon Superior Court.\nThe lessor of the plaintiff claimed title through a person by the name of Leonard Higdon, and showed a regular conveyance from him.\nThe defendant claimed the same land by virtue of a sheriff\u2019s sale, under a venditioni exponas*, founded on certain levies, made by a constable under justices\u2019 judgments and executions. A judgment had been rendered against Leonard Higdon and William Higdon, by a justice of the peace, upon which an execution issued, on which was entered the following levy, viz: \u201c Levied this execution on twenty head of hogs, and ten head of sheep, and all of L. Higdon\u2019s standing crop of corn, wheat, and rye, and three tracts of land, containing three hundred and sixty acres, on Caney Fork. \u201d A venditioni issued from the County Court, for the sale \u201c of three hundred and sixty acres of land, in three tracts, lying on Caney Fork, taken as the property of Leonard Higdon and William Higdon.\u201d The land in question, was sold by the sheriff to one Allison, who conveyed the \u00absame to the defendant. The defendant proved that the personal property,levied on, was sold prior to the order of court for the writ of venditioni exponas; but how the money was applied, did not appear. This evidence was objected to, but received by the Court, to which plaintiff excepted.\nIn aid, and in explanation of tbe above description of the land, witnesses were introduced, who stated that one of the tracts, levied on, was well known in the neighborhood as the property of Leonard Higdon, and was his residence; that it was on the waters of Caney Fork, and that said Higdon had no other land in the county; that there was no person\u2019s land adjoining it, except a large grant to a speculating company, unknown to the witnesses; and that the land would be as well known by the description in the levy, as by any other, and as well known as if described according to the requisitions of the statute. The same witnesses proved that Caney Eork was a creek some fifteen miles long; that there were two persons settled near the land in question, but not on adjoining tracts, and that a smaller creek, a tributary of Caney Fork, ran through the land.\nThe plaintiff contended that the evidence offered to show that the land was as well known by the description adopted, \u201e as it would be by that required by the statute, was insufficient in law to establish the point, and he objected to it also, as being the opinion of witnesses, not supported by facts.\nThe plaintiff, also contended, that the-orders of sale, by the County Court, were not valid, because it did not appear, by the return of the officer, what had been done with the personality levied on.\nThe Court left the point of the sufficiency of the proofs to identify the land to the jury, as a question of fact, in connex-ion with the levy above set out. He read this description to the jury, and then informed them what the statute required, and directed them to inquire whether this description \u201c is as certain (i. e. locates the land as definitely) as that required by the statute would be.\u201d '\nIlis Honor, charged that the objection to the validity of the venditioni exponas, was not sustainable. Plaintiff excepted to the charge.\nYerdict for the defendant. Judgment; and appeal by the plaintiff.\nBaxter, for the plaintiff.\nLf. W. Woodjm, and Gaither, for defendant."
  },
  "file_name": "0459-01",
  "first_page_order": 467,
  "last_page_order": 471
}