
    
      Mark Hailey v. Charles A. Curry.
    
    Where the plaintiff had purchased land at sheriff’s sale, as the property of the defendant, and the sheriff’s deed conveyed dll the land, described in the deed by boundaries, one of which was erroneous, so far as the defendant had title, the sheriff conveyed it. The deed was inoperative as to third persons for any land to which the defendant had no title at the time of sale, but the defendant could not gainsay the accuracy of the description.
    Where the plaintiff purchased the land in dispute, at sheriff’s sale, as the property of the defendant, it is not competent for the defendant to dispute the plaintiff’s title to all the land included in the sheriff’s deed, any more than if he had conveyed it himself
    
      Before Evans, J. at Chesterfield, Spring Term, 1848.
    This was an action of trespass to try title. The land was sold as the property of defendant, and purchased by plaintifF. The land was described in the declaration as bounded on the North by Thomson’s Creek. In this particular there was a variance between the proof and the allegation. In every other particular the description was accurate; sufficiently so to inform the defendant for what he was sued, and to identify the land. There was no survey. The defendant moved for a non-suit, on the ground of variance between the allegata and probata. It was admifed that it was not necessary in this form of action to describe the land by metes and bounds, but it was contended that if the plaintiff undertook to give a particular description, he must do so accurately. The circuit Judge admitted the accuracy of the proposition, but thought the rule was sufficiently complied with. Certainty to a common intent, being all that was necessary in this form of action. The motion was overruled,' and the plaintiff had a verdict.
    
      The defendant renewed his motion for a non-suit before Qourt 0f Appeals, on the following grounds, to wit:
    1st. Because the plaintiff having described the lands by certain metes and bounds in his declaration, he was bound upon the trial to have proved each boundary as set forth in his declaration.
    2nd. Because the plaintiff, having set forth in his declaration Thomson’s Creek as one entire boundary on the North of the tract of land in dispute, he should have proved it as a boundary, it being a material part of the description of the premises.
    3rd. Because the plaintiff not only failed to prove the boundaries as set forth in the declaration, but by his own witness, relied upon to identify the land in dispute, proved that Thomson’s Creek, a natural and material boundary set forth, never was a boundary of the lands in dispute.
    McQueen, for the motion.
    
      McFarlane, contra.
   Evans, J.

delivered the opinion of the Court.

The plaintiff having purchased the land at sheriff’s sale, as the property of the defendant, it was not competent for the defendant to dispute the plaintiff’s title, to all the land included in the sheriff’s deed, any more than if he had conveyed it himself. By the deed, the sheriff conveyed all the land described in the deed, by boundaries, one of which was Thomson’s Creek. The parol proof was that the land sold, was not bounded by Thomson’s Creek; but of what consequence was that ? So far as the defendant had title, the sheriff conveyed it. The deed was inoperative as to third persons, for any land to which the defendant had no title at the time of the sale, but the defendant himself could not gainsay the accuracy of the description. The trespass alleged was on a tract of land, bounded on the North by Thomson’s Creek. The. description in the sheriff’s deed was in conformity with this. There was in fact no variance between the allegata and probata. The deed proved a title in the plaintiff for all the land described in his declaration. The accuracy of this description, the defendant could no more dispute than if it had been contained in his own deed. He could not dispute the plaintiff’s title to all included within the boundaries, and therefore, as to him, the plaintiff had a right to recover all the land to Thomson’s Creek. Whether another might not have a better title was wholly immaterial. In this view, all the cases cited by the appellant’s counsel have no application.

The motion is dismissed.

Richardson, J. O’Neall, J. and Frost, J. concurred.

Motion refused.  