
    Hugh Barkley vs. James Barkley.
    .'There ate two classes of cases in which parol evidence is admissible to explain or carry into effect a deed.
    One, where the deed refers to any tiling, of which it does not itself furnish evidence; as where a person sells all Ike, slaves he owns at A. paro! evidence may be given to prove the number he had at the place, at the time. Or where a man sells ‘‘his share of his fathers estate,” it is admissible to prove how much lie was entitled to. 
    
    The other class, is where the deed upon its face is certain but some ambiguity is raised by parol, there the ambiguity maybe removed by parol.
    Where a sheriff levied on “ one lmndre/l acres, more or less Sic. being a pari of an undivided trad, fen." and in his deed described it as “ one hundred acres more or less, of land belonging to the estate of John Miller, dec’d.” parol evidence is admissible to shew how much the undivided pari was.
    But as the deed conveyed one hundred acres it could not he proved by parol, that the defendant had one part by inheritance and another part by purchase, of thirty acres each, and that only that part was sold, which lie inherited, as it would be contradicting or explaining the deed, the deed conveying more than both put together. But it would have been an'amhi-guiry explainable, if the «leed conveyed less than the two shares, and defendant might then, prove which share was sold.
    When an ambiguity is created by parol, and the deed itself removes the ambiguity, parol cannot be admitted to control the deed.
    
      ' This was an action of debt, tried Before Judge Gantt, at Fairfield, Spring term 1825.
    John Miller died intestate leaving a widow and several children, possessed of a tract of land containing about 400 acres. By virtue of a writ of partition, in the court of common pleas, the land was sold for partition among the heirs at law, and those, representing them, some of whom had sold their shares, and some were levied on and sold by the sheriff before partition, and the purchasers represented the heirs whose shares they claimed in the proceedings in partition* most of which the defendant had bought in, and' had deeds of conveyance for them. The whole tract was sold by the-sheriff to the plaintiff, under an order from the court, on a credit. The defendant produced and proved his several titles for the distributive shares of some of the heirs at. law, which were allowed him at valuation, pro raía.
    
    The principal question arose on the discount for the share of John Miller, a son and distributee of the deceased.
    One Absolom Simonton had obtained a judgment against John Miller, the son, who inherited a share, and who had previously purchased a share from Caldwell and wife. Before partition the sheriff levied and sold John Millers undevided share of the land, expressing it to be 100 acres, and made the deed accordingly to A. Simonton, the plaintiff wlio was the purchaser for ‡-, as stated by the sheriff on the fi. fa. which was also the consideration mentioned in the deed. Defendant produced a deed from Simonton, conveying the land, so purchased, to defendant, which he alleged, conveyed and passed all the interest which John Miller,- the son had, to wit: two shares.
    
    The plaintiff contended that the levy, and the discrip-tion in the deed, were not sufficient to pass more than one shares that the expression of “ one hundred acres more or less” did not alter the meaning; more especially as it clearly appeared, that the quantity of acres nominally mentioned in the levy on the fi.ja. from which the deed had been written, was in figures* and plainly appeared to have been originally 50, and altered to 100. That there were no words in the levy or the deed authorizing the construction, that it passed all the interest of Miller. Likewise that the description was at least ambiguous and uncertain; and he offered parol evidence to prove that there was, in fact, only one share levied on and sold. This he said could be proved by the crier and many other by-standers. The plaintiff also offered to prove the fact, that the same sheriff, soon after, did levy on the share of Caldwell and wife, as the property of John Miller, on another execution, which was paid off by John Hollis, who had •'afterwards purchased it from John Miller.
    The presiding judge rejected the evidence, and instructed the jury, that the description in the deed clearly shewed, that all the interest which John Miller had in the land, was levied on and sold; and that the evidence could not be received, inasmuch as the effect of it would be to contradict the deed.
    The jury, according to the charge of the court, found for defendant.
    The plaintiff moved for a new trial on the following grounds:
    1st. Because the description of the land in the levy and sheriff’s deed can only mean the share inherited by John Miller, and not the share or part he purchased from Caldwell and wife.
    2nd. Because the deed and the levy were expressed in terms so ambiguous as made it a proper subject for explanation by parol evidence.
    3d. Because the terms of the levy and deed, and other circumstances, on the face of the written evidence, clearly showed that there was no more than one share sold.
    
      
       The general rule is, that where there is any doubt as to the extent of the subject devised or sold, it is a matter of extrinsic evidence to show what is included under the description, as parcel of it. See 3 Starkie on Evid. 1026. He cites Doe vs. Burt, 1 T. R. 701. Beaumont vs. Field, 1 B. and A. 247, Herbert vs. Reid, 16 Ves. 481. See also Dolan vs. Briggs, 4 Binney 496. Jackson vs. Croy, 12 Johns 427. Barrett vs. Barrett, 4 DeSaussure’s Rep. 447. Snyder vs. Snyder, 6 Binney 483. Jackson vs. Bower, 1 Caines Rep. 358, and note of cases. Hamilton vs. Carwood, 3 Har and M'Hen. 437.
    
   Nott, J.

The principal question in this case, is, whether parol evidence ought to have been admitted to shew that the sheriff had levied on and sold the part oftheland only which John Miller acquired by descent, and not that which he acquired by purchase. There are two classes of cases iu which parol evidence is admissible to explain or carry into effect a deed. One is where the deed itself refers to any thing of which it does not itself furnish evidence. There parol evidence must necessarily be resorted to. Thus if a man should sell ail the slaves which he owned at a particular place, parol evidence must necessarily be admitted to prove the number of slaves which he had at that place at the time. So if a man should convey the share of his fathers estate to which he was entitled by inheritance, parol evidence must necessarily be admitted to show how much he was thus entitled to.

The other class of cases is where the deed upon its face is certain, but some ambiguity is raised by parol evidence, there the ambiguity may be removed by parol also. Such is the case put in the books where a man devised land to his sou John and it appeared that he had two sons of that name. In that case parol evidence was admitted to shew for which of the sons the devise was intended. The case now under consideration, appears to me to come within both the classes which I have mentioned.

The levy on the execution is in the following words: " Levied on 100 acres of land more or less whereon the defendant now lives being a part of an undivided tract adjoining lands of &.c.” The sheriff’s return of the sale is in the following words: “ I have sold the above described tract or plantation of land.” In the deed he discribes it as a tract of land containing u one hundred acres, more or less,” being the “ undivided part of a tract of land belonging to the estate of John Miller deceased.” If this deed had mentioned one hundred acres, without any qualification, there would have been no ambiguity on its face. But it is for one hundred acres" more or less, being the undivided part, &c.” The object was to sell that part of the undivided tract of land which belonged to John Miller the son But being uncertain how much his part would he, it became necessary to resort to parol evidence to establish that fact. With regard to the admissibility of that testimony there was no question. But the parol evidence created another ambjguity which has given >ise to the question now under consideration. It was diss. covered that John Miller was entitled to one share by inheritance, being thirty acres, and another by purchase, which together would make sixty acres.' And now the question occurs, whether parol evidence shall be admitted to prove that the sheriff levied on and sold only the thirty acres which he was entitled to by inheritance. The rule that where an am- " oiguity is created by parol it may be removed by parol was never intended to violate the other rule of law, that a deed "shall not be contradicted or explained by inferior testimony. If, therefore, when an ambiguity is created by parol the deed, itself removes the ambiguity it cannot be controlled. -Thus if a man convey to his son John a house in the town of. Columbia, “ being the house in which he now lives,” proof that he had two cons-of that name would render it uncertain which of the two was meant. But if by the same testimony it should appear that ene of those sons was in Europe at the time the deed ivas made, and the other living in the house, the deed itself would remove the doubt of its being made to him who was then living in the house. Let us test the case now before us by those rules? The undivided part of the land which John Miller owned contained sixty acres. Thirty by Inheritance and thirty by purchase. The deed conveys one hundred acres more or less. Now, although it was uncertain how much was conveyed until it was ascertained by parol evidence how much John Miller owned of the undivided tract, as soon as it w:as ascertained that he owned sixty acres, ■and that one hundred-had been conveyed, the ambiguity was removed; because the deed contained more than both his shaves amounted to. Sf the deed had been for fifty acres, and it had been shown that his inheritance amounted to only thirty, but that lie had acquired as much more by purchase the am•biguity would still have remained. For in one view, it would have been too little, and parol evidence, therefore, might have been let in, to have removed the doubt. But the deed, in this instance, removes the doubt; as it conveys all that he owned within one hundred acres; which embraced both shares. And to have admitted parol evidence to prove that a part only of what John Miller owned, was intended to be conveyed when the conveyance embraced all and more than all that he owned, would have been a direct contradiction of the deed itself.

Peareson and Clendinen for the motion.

Clarke contra.

But it is contended, that as the number of acres mentioned in the levy is in figures and appears to have been altered from fifty to one hundred, parol evidence ought to have been admitted to account for that alteration. There is some appearance of such an alteration having been made. But if so, it has been made by the plaintiff himself; for the execution has always been in his own hands. And in the deed, which was made by him in pursuance of that levy, the words “ one hundred acres,” are written in full, which furnishes higher evidence of the levy and sale than could be derived from oral testimony. I am of opinion, therefore, that the parol evidence was properly rejected, and that this motion must be refused.  