
    
      Robert Elfe, City Sheriff, vs. Thomas N. Gadsden.
    
    Sheriff’s sales of land are within the Statute pf Frauds; and without a written memorandum, containing, either within itself or by reference to some other writing, such a-description. of the property sold as makes it capable of identity, the purchaser will not be bound.
    Where the fi.ja. under which the levy was made, is referred to in the memorandum of the sale, the entry of the levy on th e fi.fa. maybe used in aid of the description in the memorandum.
    Where on the fi. fa. there appeared two entries of the same levy, made by the same deputy, and bearing the same date, somewhat differing in their description of the property, the first of which was not, and the second was, sworn to, Held, that both entries might be referred to, in aid of the description in the mapaaaeflfftniSB^F^M} sale.
    Where there are two parcels of properr^mw^®Nlí4-¿í^%)tion in an entry of levy applies, parol evidencetamry be resorted to, Jo ascertain which parcel had been levied on. |t lW
    The sheriff’s advertisement of the prop* in evidence to explain a latent ambiguity,' chaser was not mistaken or deceived a offered for sale.
    
      Before EvaNS, J. at Charleston, Fall Term, 1845.
    The plaintiff, as sheriff, sold a house and lot, as the property of John White. At the sale, the defendant became the purchaser at $1000, but afterwards refused to pay the money. Titles were tendered to him for a house and lot in Meeting steet,, bounded north by John White’s land, and south by the Theatre. It was said, on the trial, that the house had been built on the fire loan, and was mortgaged to the bank for a sum equal to its value. The levy was made by a deputy who had no written deputation, but had given the sheriff a bond for the performance of the duty ■of sheriff’s deputy. After the action was brought, and after the authority of this deputy had ceased, he made a return on oath, that he had made a levy on White’s house and lot in Meeting street. It appeared from the evidence that White owned two adjoining lots, on which he had erected two houses, with a parapet wall on the street, which, on that side, had the appearance of but one house. The entry of the sale was set down, in pencil, in a book, which, by the indorsement on it, seemed to have been intended as a memorandum book for the sale of negroes. The entry was in these words : “ house and lot of John White, at the suit of Russell & Hall, sold to T. N. Gadsden for 1000 dollars.” The land was levied on in the case of Russell & Hall. This record of 'the sale was transcribed in the sheriff’s sales book. There was written on the execution, the words, “levied on the defendant’s lot next to the Theatre but this was different from the levy as sworn to by the deputy. The presiding Judge was of opinion, and so charged the jury, that sheriff’s sales were within the Statute of Frauds ; and that the memorandum in writing made by the sheriff as auctioneer, in order to bind the parties, should contain, either within itself or by reference to some other statement in writing, in addition to the names of the owner, purchaser, and price, some description of the property, as would make it capable of identity. In this case, it seemed to him, the description of the lot was insufficient, because John White owned another lot; but as the entry seemed to refer to the lot levied on at the suit of Russell & Hall, it was allowable to refer to the levy, to ascertain which of John White’s lots had been levied on ; and if this had clearly indicated which of the lots had been levied on, he should have regarded it as sufficient; and he left it to the jury, to decide whether the description of the lot contained in the sheriff’s memorandum, and the levy as sworn to by the deputy, would enable them to identify the property sold and bid off by Gadsden, as the south lot on Meeting street, adjoining the Theatre, which was the lot which was described in the sheriff’s deed. A file of newspapers was introduced in evidence, to shew that the law had been complied with in advertising the property. On application made by the jury, his Honor told them he did not think they could resort to the advertisement, to aid them in ascertaining the fact submitted. The jury found for the defendant.
    The plaintiff appealed, and now moved for a new trial, ■on the following grounds.
    
      1. That the evidence furnished a sufficient description of the lot and house in this case.
    2. It is respectfully submitted, that his Honor, the presiding Judge, erred in instructing the jury that the entry in an auctioneer’s sales’ book, in cases of auction sales of real property, should contain as accurate a description of the property, and the terms and .particutars of the sale, as is required by the Statute of Frauds in memorandums of agreements to bind purchasers in cases of private sales, and that the sales books produced were erroneous in such respects ; and that, upon an inspection of the building in question, in his opinion, it did not answer to the property sold.
    3. And it is further respectfully submitted, that his Honor erred in instructing the jury that the description was not to be explained or aided by the advertisement of sales made by the plaintiff, and refusing to allow the advertisement to be taken up by the jury, when it was asked for by them, and requested and moved for to that effect by the plaintiff’s counsel; and in holding that the statement of the levy indorsed on the execution by the deputy sheriff, was not to govern, but the return thereof subsequently made, without being explained by said levy.
    Elliott, for the motion.
    Porter, contra.
   Curia, per Butler, J.

The sheriff has tendered to the defendant, the purchaser at his sale, a deed of conveyance, with the following description of the premises alleged to have been sold, bounded on the East by Meeting street, and South by the Theatre, and North by land of John "White.” The defendant refused to accept the deed, mainly on the ground that he bought, or supposed himself to have bought, a different lot from that described; or in other words, that he ought not to be bound by the terms of a sale which had been effected by mistake and surprise. To relieve himself from the obligation to abide by the terms of the sale, he took, on the trial, several legal grounds, to wit: that the entry in the sheriff’s book was not, in itself, nor by reference to the written entries of levy on the execution, a sufficient compliance with the requisition of the statute of Frauds, under which sheriff’s sales must be regulated. It has been ruled, in the case of Christie vs. Simpson, 1 Rich. 407, that an entry in the sheriff’s book, whether made by the deputy or sheriff himself, must be taken to be regular, until the contrary appear; and that a sheriff’s sale of lands under an execution, is within the Statute of Frauds, and that without a proper entry or memorandum in writing, the purchaser will not be bound.

The question in this case, then, opcurs, was the entry in the sheriff’s book sufficient to bind the purchaser ? These are the words of the entry, “ house and lot of John White, at the suit of Russell & Hall, sold to T. N. Gadsden for 1000 dollars.” This entry is evidently made in reference to the levy under which the sale had been advertised. The entry of the levy, as sworn to, was as follows : “levied on John White’s house and lot in Meeting street, the defendant in the execution.” Besides this, there is another entry on the execution, but not sworn to. If that can be referred to, it would make the other entries sufficiently full and descriptive to point out the premises that were, in fact, sold by the sheriff. That appears to have been a memorandum made by the deputy sheriff, before he made the one that was sworn to. Can it be regarded as forming any part of the levy? This makes it necessary to say what is a levy, as it is termed, of land, under a fi. fa. Land cannot be offered for sale by the sheriff, by actual exposure and exhibition of the identical parcel set apart for sale under the execution. In this respect it is not like a levy on a personal chattel, which, by virtue of an actual seizure, is always exposed to the view of the purchaser, The word levy, is not, technically speaking, applicable to the salo of land. To levy on land, in the more enlarged view of the law, is to subject it, by the act of the sheriff, to sale under a writ of fieri fa-cias. To do so effectually, the sheriff or his deputy must have an actual knowledge of the land which he condemns, or sets apart for sale. Its identity must depend on his knowledge, so that he could point it out with certainty.

This might be sufficient, so far as it regards itself; but as others are concerned, especially the defendant, and sometimes a purchaser, he must do more. He must make some descriptive indorsement on the execution, to shew what land has been levied on. Frequently, he cannot'do more than give a very general description of the premises, as to their location and extent; for he may not know, and in most cases could not know, the actual boundaries, more especially of wild lands, or those of extensive limits. His indorsement ought to be such as to give reasonable notice of his purpose to sell, and what, in fact, will be offered for sale. A levy, therefore, must consist of description, usually to be found on the execution at the time of sale. There are cases, however, in which a sheriff would be allowed to amend, and in that way to enlarge, the description of the levy; in other words, to reduce to writing an account of what he had done, in fact, in reference to the levy. In the case before us, the execution contains a memorandum purporting to have been made before the one that was sworn to. It is but descriptive of what the sheriff had done, in subjecting the defendant’s land to sale under the fi. fa. and I think may well be referred to as a part of the levy. It is as follows: “Levied on this day, the defendant’s house and lot, situate in Meeting street, next to the theatre. 9th Feb’y. 1843.” The sworn return is dated the same day. Taking all the entries together, they would stand thus : that in the case of Russell & Hall against White, the sheriff did levy upon the defendant’s house and lot situate in Meeting street, next to the new theatre, and did sell the same at sheriff’s sale, on the 6th day of March, 1843, (the day entered in the books) at which sale Thomas N. Gadsden bid off the premises at $1000. The memorandum thus written out, according to its true tenor, would be a sufficient compliance with the Statute of Frauds, to bind the purchaser for some house and lot in Meeting street, near the Theatre. If there had been but one house, I take it for granted the sale would have been good, without any difficulty. There is no patent ambiguity in the description, either in the entry in the book, or in the deed. The fact that there are two separate houses to which the description may apply, appears by evidence aliunde. That has been made to appear by parol. Then the question is, may it not be explained by parol? If White had, by his will, devised this house in the same terms, and there had been a question to which the description referred, it would have presented the case of a latent ambiguity; and being raised by parol, could be explained in the same way. This, however, would not settle the main question which is now before us. The difficulty arises from the allegation on the part of the defendant, that he bought one lot, or thought he bought one lot, while the sheriff tendered to him a deed for another; and that he has been deceived by the proceedings under which the sheriff conducted the sale. This is a question which brings up the real merits of the case. Was the purchaser deceived or mistaken, as to the land which was set down to him on his bid? If he was, and he can make it appear that his mistake arose from fallacious or deceptive representations of the sheriff, he ought not to be bound by the purchase. Under such circumstances, fraud, mistake, or surprise, would be let in evidence as a defence, but under no other; Sug. on Vend. 104. The representations or proceedings of the sheriff should have been such as to deceive a man of ordinary prudence and vigilance. It seems to me that the written description of the land would afford important information on this branch of the case. The advertisement of the sheriff was notice to the purchaser, and may be very explicit in its description of the premises; or it may be still more vague than the levy. It was excluded from the jury by the presiding Judge, and has not been brought to our view. . From the views which I have taken of the case, I think it was competent evidence, either to explain the latent ambiguity complained of, or to shew that the purchaser had no cause to complain from mistake or deception. How far it might have influenced the decision of the jury that tried the case, or what influence it may have on the verdict of another jury, we cannot tell. If the purchaser was deceived, or fairly mistaken by any fault of description, he should be relieved from the terms of his sale; but if he was not, or under the circumstances should not have been, he must stand'to it.

Motion for new trial granted.

Richardson, O’Neall and Wardlaw, JJ. concurred.

Frost, J.

dissented — Because the entry in the sheriff’s book does not contain any sufficient memorandum of the “ agreement” between the parties ; because it contains no certain description of the premises sold, and that defect is not remedied by reference to any other written document, by which the imperfect description in the entry may be supplied. The return of the deputy sheriff, even if admitted to be a return for this purpose, does not identify the premises more certainly than the entry in the sale book. No unofficial memorandum in writing on the execution can be brought in aid of the defective description in the entry, in the sale book, and the sworn return of the deputy sheriff. The description in the deed is immaterial, because if there be no valid contract,' the defendant was not bound to accept it.  