Mason v. White

11 Barb. 173, 1851 N.Y. App. Div. LEXIS 22

Opinion

By the Court,

Allen, J.

Upon the evidence in this cause I should come to a conclusion different from that to which the referee has arrived, as to what land the sheriff intended to sell. The recollection of the sheriff is evidently very far from being distinct, or even satisfactory to himself; and he does not appear to have been very familiar with the premises, and the farms adjacent. Without in the least impeaching the integrity or candor of the sheriff, it may well be said that his testimony is not reliable, as to what premises he had in his mind at the time of the levy and sale upon the execution against Christopher Edee. It would be remarkable if, at this distance of time, and with a multiplicity of other transactions pressing upon his mind dnring the entire interim, he should be able to recollect any thing of the details of this transaction. His intent, however, is not material to the decision of this cause, except as such intent is evidenced by his acts, and is expressed in the deed which he executed pursuant to his levy and sale. In this case the inquiry into the intent of the officer making the sale and executing the conveyance under which the defendant claims title, must be restricted to the terms used, and to the intent which the language of the instrument expresses. There are several reasons why this should be so, in a case like the present.

I. The statute regulating sales upon execution requires, 1st, that the notice of sale should contain a description of the real estate, with common certainty, by setting forth the name of the township or tract, and the number of the lot, if there be any, and if there be none, by some other appropriate description ; that is, a description by which it may be known and distin guished from every other parcel of land. (2 R. S. 369, § 35.) And 2d, that the certificate of the sale, to he made and filed by the sheriff, shall contain a particular description of the premises sold. (Id. 370, §42.) The deed of course follows the notice and certificate.

II. Public policy requires that the notice of sale should contain a description of the premises, by which they may be known and located, that all persons may bid and become the purchasers upon equal terms ; and that it may not be left to the sheriff, as ho may like or dislike the purchaser, or for any other reason, to make the sale operative upon such of several parcels of land as he may see fit, by a subsequent declaration of his secret and undisclosed intent; or to enlarge or diminish the boundaries of the premises actually sold, by a like declaration.

III. The judgment debtor should be able to know with certainty, from the notice and certificate of sale, what premises were actually sold, that lie may understandingly determine whether he will redeem them, or whether in fact any premises to which he has a claim have been sold.

IY. Judgment creditors and mortgagees should be able to determine from the certificate what premises have been sold, that they may protect their interests by acquiring the title of the purchaser, under the statute, if they should see fit to do so. These reasons, amongst others, should, in my judgment, preclude a resort to extrinsic evidence to establish the intent of the officer making the sale. It is not like the case of a deed inter partes, and the rules applicable to such case need not be examined. Deeds of bargain and sale between man and man may doubtless, to some extent, be explained by showing the intent of the parties; and in some cases if the deed, by reason of fraud or mistake, fails to express the true intent, it may be reformed and made to express such intent. It is very clear however, that a deed of a sheriff can not thus be reformed, and that if it follows the notice and certificate of sale, it can not be in any respect varied, for any reason, or made operative, except according to its terms. There is no doubt that in this case extrinsic circumstances may be resorted to to explain the terms used, and locate the premises described in the deed. This would, however, be only to establish and carry out the intent expressed in the deed, and not an intent which the terms of the deed fail to express. If an individual own two tracts, having the same name, and conveys one, by its name, extrinsic evidence might be resorted to, to show which was intended; but in a like sale by a public officer, upon an execution against the owner, if the officer either through ignorance that there were two tracts of the same name, or for any other reason, should omit to designate which tract was sold, I can not think that the sale would be valid. It would be void for uncertainty.

The question before us is one of construction, and is matter of law. (Frier v. Jackson, 8 John. 495.) It is not a question of boundary, which would be for the jury and in this case for the referee to determine, and perhaps not the subject of review upon this appeal. (Barclay v. Howell’s Lessee, 6 Pet. 498.) It is conceded that the entire description of the premises in the deed of the sheriff, will not apply to the premises in dispute. But it is sought to bring the case within the principle of the maxim, falsa demonstratio non nocet, and to include the premises in dispute by a rejection of the last clause of the description in the deed under which the defendant claims. The rule upon the subject appears to be that if there are certain particulars once sufficiently ascertained, which designate the thing intended to be granted, the addition of a circumstance, false "or mistaken, will not frustrate the grant; (Jackson v. Clark, 7 John. 228;) that if there is a certain description of the person, or thing devised, and a further description is added, it is immaterial whether the superadded description be true or false. (Jackson v. Sill, 11 John. 212. Jackson v. Loomis, 18 Id. 84; S. C. 19 Id. 450. Doe v. Roe, 1 Wend. 541.) The description of the premises sold by the sheriff, as contained in his deed, is as follows: “All that certain piece or tract of land situate, lying and being in the town of Brutus and county of Cayuga, on lot number fifty-five, bounded on the west by the highway as leading from Anna Passage’s to the Brie canal, east by land occupied by Joshua Bishop, and south by land owned by P. F. Wilson, containing about two acres of land, be the same more or less.” The premises in dispute were once owned by P. F. Wilson, but are not bounded on the south by any lands that are or ever have been owned by him. The southern boundary, then, the defendant claims, should be rejected as false or mistaken. But one parcel of land can be, upon any construction, included within this description, and yet there are two parcels to which it will apply if, as is claimed by the defendant, it can be applied to the premises in dispute; for directly north of and adjoining the premises in dispute is another parcel of land answering the description in the sheriff’s deed, in every respect, and in which the judgment debtor had at the time an interest in right of his wife, liable to be sold on execution. The premises in question the debtor had before then conveyed by deed which the referee now adjudges to be fraudulent. Now, which of these two parcels of land can be said to be sufficiently ascertained or to be certainly described, or described with certainty to a common intent, by this description equally applicable to both 1 Shall we leave it to the sheriff to declare which he intended, or shall we leave it to the purchaser to elect which he will take 1 In a case like the present, if two distinct parcels of land are found equally answering the description, the conveyance must be held inoperative, for the reason that it was intended to pass but one, and it can not be determined which was intended. (Richardson v. Watson, 4 Barn. & Ad. 787. Den v. Leggett, 3 Murph. 373. 1 Phil. Ev. 532. Osborn v. Wise, 7 C. & P. 761.) Were this a question upon the construction of a devise, or of a deed inter partas, it is possible that evidence of intent might be received to control the application of the description of the subject matter of the devise or grant, (Pritchard v. Hicks, 1 Paige, 270;) or both parcels might be held to pass, rather than the conveyance be defeated. (Worthington v. Hyllyer, 4 Mass. Rep. 206.) In such cases grants are construed most strongly against the grantor. But such can not be the principles applicable to a sale by a public officer, under judicial process, in which persons other than the officer and the purchaser are interested. (See per Chancellor, 18 John. 552.) Neither is this a case of a double description, as are many if not most of the cases in which the maxim referred to has been applied. All the particulars stated in the sheriff’s deed are necessary to identify the thing described, and in such cases evidence of intent to embrace a matter not answering every part of the description is not admissible, even in actions involving the construction of devises, or deeds inter partes. (6 Cowen, 720, note.) But if we go further and find that the description, when reformed as the defendant would have it reformed, is. still a very loose and imperfect description of the premises in dispute, and would even then as well, if not better, describe the other parcel of land which the judgment debtor held in right of his wife, and further, that the description contained in the deed, without alteration, is an accurate description of the latter parcel, by which it would be readily recognized by one familiar with both parcels and the adjacent lands, no, court or jury would be authorized to disregard and reject the true description, or apply it to a parcel of land not embraced within it. In other words, if a parcel of land exists, in which the debtor had an interest liable to levy and sale on execution, and which in every respect and particular answers the description of the premises sold, no part which is necessary to a perfect description will be rejected as surplusage, so as to embrace a distinct or different parcel of land, to the exclusion of the one acciu-ately described.

I. If, as is claimed by the defendant, it is conceded that the sheriff intended by the south boundary of the lands sold, the land on the south side of the road from Weedsport to Jordan, which, in fact, never belonged to Wilson, although it would be difficult to suppose that in that event the sheriff would not have bounded south on the road, which was a prominent and well defined boundary, still the description will be imperfect. (1.) There is no northern boundary, and no data from which a northern boundary can be given. (2.) The quantity of land in the premises in question exceeds the quantity mentioned in the deed, after excepting an acre in the southwest corner, which would be included in the description, hut which it is not claimed, was sold at the sheriff’s sale, the same belonging to a stranger.

II. If the south boundary, as given in the sheriff’s deed, is stricken out, then we have but the east and west lines, equally applicable to the two pieces which it is claimed were subject to be sold upon the execution, with no means of telling which was intended, and fixing the northern and southern boundaries, either by reference to actual occupation or in any other way.

III. With the southern boundary wanting, the residue of the description would better describe the north parcel of land than the premises in dispute. The north parcel which the judgment debtor occupied, and which he held in right of his wife, was situated in the angle formed by the intersection of the Anna Passage road with the line of Bishop’s land, so that no north bounds were necessary, the parcel being triangular, and the quantity of land in this parcel is about the same as stated in the deed.

IV. But the description contained in the sheriff’s deed is precisely that of the land conveyed to the wife of the judgment debtor. 1. As before said, it has no northern boundary: it is bounded on the west by the road mentioned, on the east by Bishop’s land, and on the south by lands then lately owned by P. F. Wilson. It is true that the deed speaks in the present tense, when speaking of land owned by P. F. Wilson, but as there is no other land in the vicinity, to which it can apply, the land recently owned by Wilson would be intended, (Cowen & Hill’s Notes, 1377, and cases cited,) and the deed should receive this construction ut res magis valeat quam pereat. 2. The deed to Mrs. Edee, of the triangular lot, was on record, and the conveyance to her was by the same description by which the sheriff sold, with the single exception that the sheriff, in his description, bounds the south’“-by lands owned by P. F. Wilson,” and Mrs. Edee’s deed bounds south “ by lands now owned by P. F. Wilson,” the word “now” being omitted in the sheriff’s deed — a mere verbal and that an immaterial departure from the recorded and well known description of Mrs. Edee’s land. The purchaser could, without difficulty, and without parol proof or reference to extrinsic circumstances, trace his'title to the triangular piece by the description given in the sheriff’s deed. 3. As evidence that in fact this piece, and not the premises in dispute were sold, it may be remarked that Mrs. Edee’s deed was on record, the judgment debtor’s occupation was public and the right to sell that was undisputed, while neither the deed from Wilson to the debtor, nor the one from the debtor to his brother, were on record, and there is no reason to suppose that the sheriff or the purchaser, who was the judgment creditor, had any idea that the debtor had any title to, or interest in, the Wilson premises by which they bounded the land actually sold, on the north. I think that it is very evident that the purchaser either acquired á title to the triangular tract, to the extent of the estate of the judgment debtor, or that he acquired no title to any land, by reason of the uncertainty in the description. The amount bid may be referred to as some little evidence— very slight it is true — of the estate which the purchaser supposed he was getting in the lands sold. In Jackson v. DeLancy, (13 John. 538,) it was held by the court for the correction of errors, that in a sheriff’s deed the land sold must be described with reasonable certainty, and that the sheriff can sell nothing which the creditor can not enable him so to describe. The remarks of the chancellor, at pages -551 and 552, are applicable to this case, upon the theory that the triangular piece of land is not clearly described in the sheriff’s deed, and that it is left uncertain which parcel of land was intended, and clearly show that the premises in question did not pass to the purchaser at the sheriff’s sale. In Jackson v. Striker, (1 John. Cas. 284,) it was held that nothing will pass at a sheriff’s sale but what is then known and promulgated. Dike v. Lewis, (4 Den. 237, S. C. 2 Barb. S. C. Rep. 344,) decides that a comptroller’s deed of lands sold for taxes, which designates the lot by a wrong number, is void, though it contains other matter of description which, if the number were rejected, would sufficiently identify the lot. If this had been a deed of bargain and sale between individuals, the number of the lot might and would have been rejected, and the deed would not have been held void. The same principle is decided in Tollman v. White, (2 Comst. 66,) and the same distinction between deeds between individuals and deeds executed by public officers recognized, it being allowed in the former, to reject a part of the description of premises on account of its falsity, while such practice is not allowable in deeds of the latter class. We are of the opinion, therefore, 1. That the deed under which the defendant claims title does not embrace the premises in question, but does include the triangular piece owned by Mrs. Edee. 2. That if the Margaret Edee tract is not included in the deed, then the deed is void for uncertainty, and no title passed to the purchaser. 3. That in the construction of the sheriff’s deed every, part of the description must be read and satisfied with reasonable certainty, and that no part of it can be rejected for its falsity.

[Oneida General Term, January 6, 1851.

Gridley, Allen and Hubbard, Justices.]

The judgment must be reversed, and a new trial had before the referee : costs to abide the event.