
    
      T. J. Dyson vs. A. G. Leek.
    
    A sheriff's conveyance of land sold under a fi.fa., described the land as “ one thousand acres, more or less, adjoining lands of F. W. Pickens, Proctor, and others.” The defendant in the fi. fa. owned two adjoining parcels of land; one called the Anderson land, containing one thousand and seven acres, the other the Owens land, containing two hundred and eighteen acres. The boundary, “ adjoining lands of F. W. Pickens, Proctor, and others,” applied equally, whether the Owens land was included or excluded. The jury found that only the Anderson land was conveyed by the sheriff’s deed. Held, that the verdict was right.
    If the land can be otherwise located, the quantity mentioned in the conveyance is, in general, immaterial; but where it is resorted to as one of the evidences of intention, it then becomes a material part of the description.
    
      Before Evans, J. at Edgefield, Spring Term, 1846.
    This was an action of trespass to try titles. The sheriff, under a fi. fa. had sold land belonging to the defendant, which was purchased by Dyson. In the sheriff’s deed, the land was described as one thousand acres, more or less, adjoining lands of F. W. Pickens, Proctor, and others. The land claimed by the plaintiff consisted of two parcels ; one called the Anderson land, which had been sold by Dyson to Leek, containing one thousand and seven acres, the other was called the Owens land, containing two hundred and eighteen acres. This tract had been purchased by Leek from one Owens, after his purchase from Dyson. Leek lived on the Owens land, and cultivated on both tracts, before and after the sale. The question was, whether the Owens tract was included in Dyson’s purchase. The only description was that abovemen-tioned. The boundary adjoining Pickens’ and Proctor’s land, applied equally, whether the Owens land was included or excluded. The witnesses spoke of some ageeement between the parties about the purchase of the land, before the sheriff’s sale. This, for some reason, was not perfected, and the sale was made by the sheriff. There was an agreement that Leek should retain possession of portions of the land for 1844, the year of the sheriff’s sale, but he did not deliver it up at the end of the time. One of the witnesses said that about Christmas of that year, Leek said he wished to remain on the land, and did not wish to have it for nothing. He requested of this witness to enquire of Dyson if he would rent it for the next year.
    The jury found for the plaintiff only the Anderson land, and he appealed, on the following ground.
    That the plaintiff was entitled to a verdict for the two hundred and eighteen acres of land, called the “ Owens land,” as well as for the other parcel found by the verdict for the plaintiff, because the two hundred and eighteen acres composed a part of the tract of land on which defendant lived at the sheriff’s sale, February, 1844 ; was recognized by defendant as included in the deed, by his offer to pay rent for it after the sheriff’s sale; and because the two parcels were, by the witnesses, proved to constitute one tract; and because the deed embraced the said parcel of two hundred and eighteen acres.
    Griffin, for the motion.
    
      BauskeM, contra.
   Curia, per Evans, J.

In this case, the question was whether two hundred and eighteen acres, called the Owens land, was included within the deed from the sheriff to the plaintiff. The only description is, that the tract of land conveyed contained “ one thousand acres, more or less and that it was “ adjoining lands of F. W. Pickens, Proctor, and others.” Pickens’ land and Proctor’s land would be adjoining the tract, whether the Owens land was excluded or included ; so that this boundary alone did not shew what land was intended to be conveyed. The only remaining description is the quantity. If the land can be otherwise located, quantity is, in general, immaterial; but where it is resorted to as one of the evidences of intention, it then becomes a material part of the description. The Anderson land is said, by the surveyor, to contain one thousand and seven acres. It is said, in the survey- or’s explanation of his plat, that fifteen acres of this had been sold, as he was informed by the plaintiff, by the defendant to Wm. Roe; taking this off, there are nine hundred and ninety-two acres left, approximating very nearly to the quantity mentioned in the deed; but if we add to this the Owens land, two hundred and eighteen acres, then the number of acres exceeds what is called for in the deed, by more than two bundled. We do not, therefore, perceive that the verdict of the jury withholds from the plaintiff anything included in his deed. • The verdict gives him a tract of land adjoining F. W. Pickens, Proctor and others, and containing within eight acres of the quantity mentioned in his deed. It was said, in the argument in this court, that a part of the Anderson land, on the South side, had been sold off to Pickens. There was some evidence that Pickens’ land, which was called for as a boundary, lay on that side, and something was said by the witnesses to that effect; but its location and number of acres was not proved on the trial, nor does the plat shed any light on the subject. I think it likely that both parties understood the Owens land to have been included in what the sheriff sold; but if the plaintiff took a deed with a description which, in the opinion of the jury does not include it, he cannot complain. When a plaintiff comes into court demanding that which is in the defendant’s possession, he must shew that he is the legal owner, before he can expect to recover it by law. This, the plaintiff in this case has failed to do, and his motion for a new trial is dismissed.

Richardson, O’Neall, Waedlaw and Frost, JJ. concurred.  