Morse v. Dewey

It is said, that nothing passed by the extent, in this case ; because the execution did not run against the estate of Wright, upon whose land it was extended. But it appears, on the face of the execution, that there was a joint judgment against Wright and the two others; and it appeals from the officer’s return, that Wright considered the execution as running against his estate ; for he actually chose an appraiser. It is also clear, that the judgment, being joint against several, who were living, no several execution could legally issue against one. The omission of the names of two of the debtors, in the latter part of the execution, was evidently a mistake of the clerk. This seems to us to be an instance, where the court may, notwithstanding the defect, rightly understand and intend, both the person and the cause ; and we cannot hold the extent invalid on this account. 1 N. H. Laws 99.—2 N. H. Rep. 322, Hoit vs. Molony.—1 Cowen 413, Porter vs. Goodman.—1 Pickering 354 and 461.—6 D. & E. 526.

It is further said, that it does not appear from the officer’s return, that the extent was made upon the land demanded in this writ. But it is a rule of law, that if the description be sufficient to ascertain the estate intended to be conveyed, although the estate will not agree to some of the particulars in the description, yet it shall pass by the conveyance. 4 Mass. Rep. 205. And, in this case, the land intended is clearly ascertained by the road, by the courses and distances, and by the school house. And, although one of the monuments is wrongly described ; yet, as enough appears to shew the land intended, that circumstance cannot affect the validity of the extent.

Judgment upon the verdict.