Doe D. Swiggett v. Kollock

8 Del. 326

• Court: Superior Court of Delaware
• Decided: July 5, 1866
• Status: Published

Opinion

The Court, Gilpin, C. J., charged the jury.

It is contended by the counsel for the plaintiffs, that the levy of the sheriff under the fi. ja. issued in this case, was an illegal or void levy—first, because, as he alleges, it does not include- all the land of which James A. Harris died seized ; and secondly, because the description of the land, contained in the levy, is too general, indefinite and uncertain, to identify the land, and that, therefore, the levy was insufficient and void.

How as to the first ground of objection, we say to you that the objection comes too late.

It might have been taken at the return term of the levy, to wit, at the Apr. T. 1851, and the inquisition and condemnation would have been set aside upon its being shown to the court that all the lands had not been levied upon ; but not having taken it then, it can not be taken now ; because, it is a rule of this court, that no .objection to the inquisition can be taken after the return term of the ji. fa. and inquisition,except in the special case of want of notice. Hor can any objection be taken to the sale, for the purpose of invalidating or setting it aside after the term to which the sale is returned. If the objection is not taken at the return term of the writ, the sale is affirmed as matter of course, and is final in its character and effect. And, therefore, we say to you that the plaintiff can not avail himself of this objection at this late, day, nor .in .this ease.

The second ground of objection to the levy, is, that it is too general, indefinite and uncertain.

blow, in regard to this objection, it is proper to advert to the statute law of this State, which prescribes the duty of the sheriff in respect to levying on land and holding of inquisitions.

Section 48 of chapter 111, which defines the duty of the sheriff on this point is very general in its terms, and gives the sheriff great latitude in describing the land levied on. Its language is, “ If there has been a levy or seizure of land, the sheriff’s return shall specify the principal improvements thereon, if any, as well as the known, or computed quantity, and situation thereof.” blow, are the requirements of this provision of the statute, satisfied by the return of the sheriff? He is to specify the principal improvements, if any, and he returns that there were no improvements on the land. He is to state the known or computed quantity of the land. If he knows the exact quantity, it his duty to state it; if he does not know the exact quantity, he is required to state the estimated, computed or reputed quantity, the words ‘ known ’ and ‘ computed, being used in the act in contradistinction to each other; the one as an ascertained and exact quantity, and the other as an unascertained, uncertain, but estimated quantity. If, in the absence of fraud, the sheriff erred in regard to the quantity, it is not material, it does not vitiate or render void the levy or return. He is also required to state where the lands are situate; and he has done so, by describing them as being in Dagsboro Hundred, in this County, adjoining lands of Joseph Kollock and others.

The statute, as I have already stated, is general in its terms. It does not require a special or particular description. A general description is sufficient, if such description identifies the land and its locality.

Entertaining, as we do, this view of the true construction and meaning of the statute, we are bound to say to you, that the levy and description, made and returned by the sheriff, are valid and sufficient in law, and that the plaintiffs objection on this ground, can not avail him in this case.

It is contended by the counsel for the defendant that the several pieces or parcels of land, purchased by James A. Harris at different times, and from different persons, and of which he died seized, and which are delineated on the plats which have been submitted to you, adjoined each other, and constituted in fact one tract" of land, and were so held by James A. Harris at the time of his decease. On the other hand, the counsel for the plaintiffs contends that these several pieces or parcels did not so adjoin each, other as to constitute one tract, but were distinct and separate parcels, and were so held by Mr. Harris at the time of his death.

It will be for you, gentleman of the jury, to determine from the evidence before you, which of these two propositions or positions, is the true one; for upon the solution' of the question, involved in these propositions, must depend your verdict.

The description of the land levied on, as recited in the Venditioni Exponas, and set out in the sheriff’s deed-namely “Ho 2, a certain tract or parcel of land situate in Dagsboro Hd. and county of Sussex, containing 140 acres, more or less, and no improvements, adjoining lands of Joseph Kollock and others, a part of which is cypress swamp,” is sufficient to cover and include all the lands of which James A. Harris died seized situate in Dagsboro Hundred in this County, which adjoined lands of Joseph Kollock and others, upon which, at the time of the levy, there were no improvements, and a part of which was a cypress swamp. And the fact, that the tract contained more than 140 acres will not, of itself, vitiate or avoid the sale ; and the purchaser, the defendant in the case, is entitled to all the lands which are fairly included in the description contained in the levy, although the quantity may exceed 140 acres. For where a tract of land is put up and sold as such by the sheriff, that is, sold as a tract of so much land, “ more or less,” the purchaser takes the whole tract, withoute reference to the computed quantity which it is said to contain.

The question therefore you are called upon to determine according to the evidence, is, whether the land in dispute constituted an adjoining part of the lands of which James A. Harris died seized, situate in Dagshoro Hd. in this County which adjoined lands of Joseph Kollock and others. If you shall he satisfied from the evidence that such is the fact, then your verdict should be for the defendant.

On the other hand, if you are satisfied from the evidence, that' the land in dispute did not constitute an adjoining part of the lands of which James A. Harris died seized, situate in Dagshoro Hundred in this County, which adjoined lands belonging to Joseph Kollock and others, your verdict should be in favor of the plaintiffs.