
    *John Doe, ex dem. John B. Eaton, v. Nicholas Longworth.
    There were, apparantly, on the face of the levy, and return of an execution,, two lots levied upon and appraised, and one sold and one withdrawn from sale. The boundary of the lot sold was described as beginning at a point fifty-seven feet from a certain street, and having a front of seventy feet—• of the one not sold, as beginning at a point thirty-eight feet six inches from the same street, and having a front of thirty feet, and to the extent of eleven and one-half feet; the two lots were thus described as having the same front. The defendant offered in evidence the levy and return, but did' not read the parts of them referring to the lot not sold. He then offered evidence, in view of other particulars in the description, to show that there was a mistake in describing the lot sold, as to the point of its beginning on the street, and claimed that the whole description being applied to the property, the lot sold really covered the ground described as the lot not sold: Held, that the plaintiff was entitled to the benefit, as evidence, of the of the and return not offered by the defendant, and might, by that and other proof, if he could, show that the mistake was not in the particular claimed by the defendant.
    Error to the district court of Hamilton county.
    The original action was ejectment, brought to recover the possession of a lot of land in the city of Cincinnati.
    The plaintiff offered evidence showing title by a deed from Thomas H. Allen. This deed calls for a lot on the south side of Longworth street, its boundary beginning at a point thirty-eight feet and six inches east from Smith street.
    The defendant, to defeat that title, offered the transcript of a record showing a judgment against Allen in favor of Peter A. Conant, a levy claimed to embrace the lot in controversy, a sale and confirmation, and also offered a d.eed from the sheriff to Daniel H. Horne. This deed calls for a lot on the south side of Longworth street, its boundary beginning at a point fifty-seven feet east from Smith street. It calls for a front of seventy feet, and is said to include three lots with improvements. These proceedings were ^anterior to the deed offered by the plaintiff, and, if the levy and sale embraced the lot in controversy, showed an outstanding title against the plaintiff.
    The defendant, in offering the transcript, excepted certain parts which he did not offer in evidence, but which he desired to be excluded. The parts omitted were in the levy of the sheriff and his return of sale, which are as follows, the parts omitted being in italics:
    The return of the levy by the sheriff is a follows :
    “April 13, 1841. No goods and chattels found whereon to levy, and for want thereof levied upon the real estate of all that certain lot or parcel of ground in the city of Cincinnati, beginning at a point on the south side of Longworth street, thirty-eight feet six inches sast of Smith street; thence running east thirty feet; thence south seventy feet; thence west thirty feed; thence north seventy feet to the place of beginning, with the improvements thereto belonging, being the same property conveyed by N. Longworth to T. Allen, by deed dated June 14, 1832. Also, all those certain lots of land in the city of Cincinnati, on the south side of Longworth street, commencing at a point fifty-seven feet east of Smith street, thence eastwardly along Longworth street, seventy feet; thence south at right angles with Longworth street, seventy feet; thence west on the line parallel with Longworth street, seventy feet; thence northwardly at right angles with Long-worth street, seventy feet to the place of beginning, including three lots with improvements thereto belonging.
    J. C. Avert, Sheriff.”
    
    
      The return of the sale by the sheriff is as follows:
    “In pursuance of the command of the within-attached writ, I, J. 0. Avery, sheriff of said county, proceeded on the 13th day of April, a. D. 1841, for want of goods and chattels, to levy upon the lands and tenements indorsed on said writ, and on the 17th April, a. d. 1841, proceeded, by the oaths of Jonathan Pancoast, Edward Dodson, and ^Samuel H. Goodin, three disinterested freeholders, residents of said county, to cause the said lands and tenements levied on as aforesaid, to bo appraised, and which wore accordingly appraised by said freeholders as follows, to wit: For the lot firstly described, at the sum, of eighteen hundred dollars, and for the other lot of seventy feet square the sum of five hundred (thousand) dollars, as per copy of said appraisement duly filed with the clerk of said court; and thereupon I, John C. Avery, having first given public notice of the time and place of sale, by advertising the same for thirty days in the Cincinnati Gazette, a newspaper printed and in g-eneral circulation in said county, did sell the said lot of 70 feet square, lastly described, at public auction, at the door of the courthouse in said county, on the 24th day of May, a. b. 1841, at 11 o’clock a. M. of said day, to Daniel H. Horne, for the sum of four thousand two hundred dollars, being more than two-thirds of the appraiséd value thereof, and the highest and best bid offered for the same. Amount of sale $4,200. The other lot not sold by order of plaintiff's attorneys.
    
    
      “May 24, 1841. John 0. Avert, Sheriff.”
    
    The defendant then offered other evidence tending to show that •the lot in controversy passed by the deed of the sheriff.
    The plaintiff, to rebut the evidence of the defendant, and to show ■that the title to the lot in controversy did not pass out of Thomas ,H. Allen by the deed of the sheriff, “ but that part of it at least •laid west” of any point covered by the deed of the sheriff, offered ;a deed from Daniel H. Horne to the defendant, which was received ‘in evidence. This deed, in describing the lot, followed the description in the deed from the sheriff. He also offered to read in evidence the portions of the transcript which the defendant had -omitted. To this the defendant objected, which objection was sustained and exception taken. A *verdict and judgment having been rendered for the defendant, this petition in error is now /brought to reverse that judgment.
    
      J. B. Faton and J. JET. Jones, for plaintiff.
    
      Worthington & Matthews, for defendant.
   G-holson, J.

The lot in controversy is shown by the evidence to begin at a point on the south side of Longworth street, thirty-eight feet six inches east of Smith street; and the part the plaintiff claims fronts on Longworth street eighteen feet six inches, being part of the lot for which suit was brought, which lies between a point thirty-eight feet six inches east from Smith street, and a point fifty-seven feet east from Smith street. The contest between the parties was whether the true boundary of the lot conveyed by the sheriff to Horne began at one point or the other. Now, the deed from the sheriff to Horne, and the deed from Horne to the defendant, calls for a lot beginning for its boundary at a point fifty-seven feet east of Smith street. The case of the defendant must have been, to show, from other points of description and from other evidence applying the description to the property of Allen, that this was a mistake, and that the mistake was not in the seventy feet front, which the deed called for, but in the point of beginning. The plaintiff, on his part, offered to show that the levy, sale, and deed of the sheriff did not extend to any ground west of a point fifty-seven feet east from Smith street. To do this, he proposed to show that two lots were levied on, one sold and one withdrawn from sale, the latter in explicit terms embracing the ground in controversy, though also extending to a part of that embraced in the description of the lot sold, and this he proposes to show by the very same document upon which the defendant relied, and which the defendant had offered in evidence.

*If it appeared upon the face of the document itself, and as a matter of legal construction, that the mistake was as the defendant claimed, then it might have been proper for the court to exclude the parts of the transcript which were not offered by the defendant. But if, to make out that the mistake was as he claimed, parol evidence became necessary and was offered by the defendant, then, to meet such evidence and lay a foundation for any evidence the plaintiff might desire to offer to show that the mistake was different from that claimed by the defendant, we think the plaintiff was entitled to the benefit, as evidence, of the parts of the transcript of the record which the defendant had declined to offer or read.

Looking, with this view, at the levy and return of the sheriff; it appears quite clear that the court could not say to the jury, as a matter shown by a legal construction of the writing, that the lot which was sold by the sheriff had as its boundary, and extended to, a point thirty-eight feet six inches from Smith street. To show this, other evidence was necessary—was, in fact, offered, and was, very probably, entirely satisfactory to the court and the jury. But the plaintiff had a right to present to the jury the other side of the question. Whether he could have' successfully done so, is not the question before us. The action of the court prevented him from taking the first step in that direction, and in this, we think, there was error.

The judgment of the district court must be reversed, and another trial awarded.

Brinkerhoee, C. J., and Scott, Sutliee, and Peck, JJ., concurred.  