Carroll v. Miner
Carroll v. Miner
Opinion of the Court
Opinion by
In that portion of his charge which is the subject of the eleventh assignment of error, the learned judge below instruct^ ed the jury that the levy was upon three distinct tracts, and the case was tried upon that theory. The contention of the defendant is, that the levy, taken as a whole, and construed in the light of the extrinsic evidence as to the location and use of the buildings, was a levy upon the three contiguous lots, which, together, constituted but one property. Was there sufficient evidence to warrant the submission of this question to the jury ? The limitations in a conveyance are always matters of law. What lands are described, is often a matter of fact. The operation of the deed as to the nature of the estate is for judicial construction ; the description of the property, its extent, often is a mixed question of law and fact: Swartz v. Moore, 5 S. & R. 257. It is undoubtedly true that where the subject-matter of a grant is insufficiently described in a deed, parol evidence may be given to show precisely what was intended to be conveyed. It is said in Starkie on Evidence, 602, that in general, when there is any doubt as to the extent of the subject-matter devised by will, or demised or sold, it is a matter of extrinsic evidence to show what is included under the description as parcel of it. The same principle is ruled in Scott v. Sheakly, 3 W. 50, and Hoffman v. Danner, 14 Pa. 25. And in such case it is well decided that the question of the extent of the grant must go to the jury. . . . The authorities are equally clear that the rule which allows extrinsic evidence to
Second. The defendant in the execution owned the three contiguous lots; he did not own the lot marked on the draft as No. 2; nor was that'lot bound by the lién of the judgment'on which the sale was made—at least so the defendant offered to
Where doubtful expressions are used, the construction should be favorable to the plaintiff to enable him to obtain payment of his debt from the property of his debtor, rather than that he should lose it: Inman v. Kutz, 10 W. 90; Heartley v. Beaum, 2 Pa. 165, 172; Wright v. Chestnut Hill Iron Co., 45 Pa., 475.
Third. The three contiguous lots were not treated by the owner as distinct and separate divisions of his land, but were occupied and used as one property; or rather, to be more exact, there was evidence from which a jury would be warranted in finding this as a fact. The presumption arising from the sheriff’s duty to levy on and sell it as one property, and not to divide it. in a manner so injurious to the plaintiff and the defendant in the execution is very strong, as the cases cited later abundantly show. This presumption is strengthened by the fact shown by the return that the whole property was sold in one-lot for a gross sum.
Taking the description as a whole there is a seeming contradiction when we come to apply it to the land; the question-then arises whether the levy was upon three distinct and separate lots, or upon the three contiguous lots upon which the-buildings stand, and which were owned by John Miner and. used as one property. It seems to us after a very careful examination of the cases, that this question should have been submitted to the jury: Swartz v. Moore, 5 S. & R. 256; Scott v. Sheakly, 3 W. 50; Hoffman v. Danner, 14 Pa. 29; Shoemaker v. Ballard, 15 Pa. 92; Hetherington v. Clarke, 30 Pa. 393; Susq. Boom Co. v. Finney, 58 Pa. 200-208; Lodge v. Barnett, 46 Pa. 477; Titusville Novelty Iron Works’ Appeal, 77 Pa. 103; Steigleder v. Marshall, 159 Pa. 77; Wildasin v. Bare, 171 Pa. 387.
But, assuming that the levy is to be construed as a levy on three distinct tracts not contiguous, or that a jury upon the-question being submitted to them would so find, does it follow that the boundaries of lots (1) and (3) are to be ascertained solely by the courses and distances and calls for adjoiners, without reference to the buildings and other natural objects called for in the levy as being on them ? Take lot (3). There
The defendant gave some evidence, tending to show, and offered explicitly to show, that the dwelling house and liquor store mentioned in the levy are upon one foundation, cover . one cellar, and are under one and the same roof, and that the two constitute but one building. We think the-evidence embraced in this offer should have been admitted. Assuming the facts to be as claimed, and presuming, as we may, that the sheriff intended to do his duty, what more certain evidence could there be of the intent of the sheriff to levy on and sell all the land actually covered by that building? And what more certain evidence could there be of the understanding of the parties to the writ and of bidders ? What is to prevent this common intent and understanding from being carried out ?' In his answer to the plaintiff’s fourth point the learned judge said: “ If you find that there was any portion of the store or of the barn that is off from the .land as described by courses and distances, you will be governed by the courses and dis
The description of this line would be literally accurate even if it be held that it should be so run as to include all the land actually covered by the building. But we are not disposed to rule the question on what may seem to be a quibble as to the meaning of the language of the call. Let us suppose that the northerly side line of the Cronin lot was called for. It was not marked or indicated in any way on the ground. The owner of the land disregarded it in building. It was not a division of his property which he had made or recognized. It was not the line of the lot upon which the building stood. To what then is the discrepancy between the two elements in the description to be attributed; to the sheriff’s mistake as to the actual location of the line of what was formerly the Cronin lot, or to an intention to disregard his duty to the injury of the defendant? “If therefore we find that he (the sheriff) had followed the owner’s interests in the main and substantial parts of his description, but had deviated in a minor particular only, we are to attribute that to a mistake rather than to an intention to injure, if the evidence applying the description to the ground leads to that conclusion. It is well settled that you may not change or alter the levy by parol evidence, but you may show in its application to the subject-matter it is incorrect; and if without the erroneous part of the description it has sufficient elements left to identify the subject of sale, it is sufficient: ” Lodge v. Barnett, 46 Pa. 477. Unless we are obliged to reject the reference to the building, and are required to say that it was not intended to identify and describe the lot; nothing can be clearer than that his intent was to levy on and sell all the land upon which the building actually stands. Whether more than that would pass as appurtenant to it, is another question. But it cannot be held that less than that would pass, without holding that the sheriff proceeded in reckless disregard of his sworn duty and of the rights of the defendant in the execution. Not only the prima facie legal presumption that he intended to obey the law, but the inference fairly to be drawn from the levy taken as a whole, forbids sucha conclusion. The calls of lots (1) and (3) may show an intent to exclude from the levy the land lying
We are of opinion also that the evidence covered by the 2d and 9th assignments of error was competent, for the reason stated in our discussion of the main question.
We are not convinced that the facts offered to be proved by the sheriff and Thomas Miner regarding the sale would add anything explanatory to what the return itself shows; therefore, the court committed no error in rejecting the offers. Much less was it competent to explain the levy by testimony of a.
We see no relevancy in the evidence which is covered by the first assignment; it would have tended only to confuse, and was properly rejected.
Judgment reversed and venire facias de novo awarded.
Reference
- Full Case Name
- John W. Carroll v. Thomas Miner and James Ladden
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- Deeds—Rules of construction, as to limitations and descriptions. The limitations in a conveyance are always matters of law. What lands are described are often matters of fact. The operation of the deed as to the nature of the estate is for judicial construction ; the description of the property, its extent, often is a mixed question of law and fact. Evidence—Deeds—Insufficient description—Extrinsic evidence. Where the subject matter of a grant is insufficiently .described in a deed, parol evidence may be given to show precisely what was intended. Deed—Insufficient description—Question for jury. Where there is doubt as to the subject-matter demised or sold, it is a matter of extrinsic evidence to show what is included under the description as parcel of it, and in such case it is well decided that the question of the extent of the grant must go to the jury; although it is equally clear that the rule which allows extrinsic evidence to explain the extent of the subject sold has no application where a subject-matter exists which satisfies the terms of the instrument of conveyance. Execution—Ambiguous description in levy—Rejection of erroneous parts. Where in a deed, based upon a levy, all the description of the land being vague, its identity becomes the subject of inquiry, parts of the levy should be considered, and, if being so considered, there appears to be ambiguity, then the rule applies which permits the erroneous parts of the description to be rejected, if sufficient elements are left to identify the subject of sale. Ambiguous levy—Construction—Question for jury—Parol evidence. Where taking the description as a whole there is a seeming contradiction in any attempt made to apply it to the land, and the question arises whether the levy was upon three distinct and separate lots or upon three contiguous lots upon which stood buildings, especially, referred to as monuments in an underlying levy, and which were owned by the original defendant in the execution and used by him as one property, then the case presents a condition which should have been submitted to the jury, and extrinsic evidence to define the land covered by the levy is admissible. Sheriff's duty and presumption of performance—Construction of levy. It is the requirement of the law that if any part of an entire establishment or building be seized in execution the whole must be sold ; if the descriptive parts of the levy omit anything which is a parcel of a whole the entire levy must be looked to to see what was intended to be seized. Public Officers—Presumption of legal action by sheriff—Execution—Construction of levy—Ejectment—Words and phrases—Monument defined. In the construction of a levy in aid of an ambiguous description the’ question is what limits the officer bad in his eye at the time of the levy and what land he actually levied upon; it is to be presumed that the sheriff in making the levy acted in the performance of bis duty and in obedience -to law, and such presumption invokes the guiding interpretation of certain well known rules, i. e.: Even calls for adjoining tracts sometimes give way to monuments and marks upon the ground; and a monument may be defined as any object,-natural or artificial, set up or adopted by the parties to identify the subject oí a grant, or to define its boundaries; where a tract of land belonging to a defendant is marked and indicated in the levy by certain buildings, referred to as a monument, it is to be presumed that it was the intention of the sheriff to sell all the land covered by the buildings, and the presumption of such intent must prevail even as against an ambiguous or erroneous description by courses and distances which would bisect the buildings. It is not to be presumed that the sheriff would, by his levy, intend to divide a building by an arbitrary line running through it, so that to give possession of the land sold would result in the destruction of that which perhaps gives it its chief value, such aetion would have to imply an intent on the part of the sheriff to proceed in reckless disregard of his duty and of the rights of the defendant in the execution. Evidence—Eplctnaiion of ambiguous levy. It is not competent to explain or define the scope of a levy by the testimony of a bidder as to his understanding, nor by the testimony of the sheriff .or others as to description read at sale.