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 110 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 showing 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 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 (39) to whom it was made to the county court, who ordered a venditioniexponas to issue thereon. The venditioni exponas, reciting the levy as made by the constable, was issued direct 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 on 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 specific, and made other objections *Page 37 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. There would probably be no serious difficulty in (40) the way of affirming the judgment of the Superior Court but for the objection taken to the certainty of the levy. The constable's return is "levied on lands supposed to be upwards of 100 acres, where RichardHeath lives. No other property to be found." To sustain this levy, the defendant proved that James Joiner, the defendant in the execution, owned but two 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 pocoson, pine barren, and was known as a tract belonging to James Joiner whereon James 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 plaintiff excepts to this opinion for two reasons: 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 of these objections are well founded.
Rev. Stat., ch. 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 has 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 (41) literally observed, but at the same time they have held that where *Page 38 the return does not set forth all the marks of description prescribed by the statute, it is necessary for the claimant under the levy to show 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, 20 N.C. 27; Huggins v. Ketchum, ib., 550; Smith v. Low, 24 N.C. 457. And by the same decisions it is settled that where it is attempted to help a return by such extrinsic evidence, the inquiry whether the land levied on be thereby identified is an inquiry of fact for the determination of the jury.
We are unable in this case to lay our hands on any evidence 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." A part 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 shown that the land in question ever bore this description, on the contrary, the evidence is that the land 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 inquire, 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? James Joiner had two tracts, each (42) containing upwards of 100 acres. There is nothing to show which of these, if to either, the levy applied.
PER CURIAM. New trial.
Cited: Jones v. Austin, 32 N.C. 21, 22; Farmer v. Batts, 83 N.C. 389.