
    Wiseman v. Cowart.
   Atkinson, J.

In 1899 two fractions of certain land lots were exposed to sale at public outcry'by a sheriff under a common-law fi. fa. The land was knocked down to the highest bidder, and-the sheriff made a deed in which the land was described as 41% acres off of the southeast corner of-lot 305, and 125 acres off of the east side of lot 304, in the 7th district of Baker County. The land which the defendant in fi. fa. actually owned was 41% acres in the southeast- corner of lot 304, and 125 acres off of the east side of lot 305. The purchaser thought he was buying ■ the property which the defendant actually owned, and entered possession thereof. Fourteen years later it was discovered that the sheriff’s deed did not properly describe the land upon which the purchaser entered; whereupon suit was instituted against the defendant in fi. fa. and the sheriff, to reform the deed in sucb manner as that it would describe the land upon which the plaintiff had entered. The defendant denied knowledge of the sale, or any mistake at the sale, as well as the validity of the deed; and in her answer in the nature of a cross-petition she sought to recover the land on which plaintiff had entered and mesne profits. On the trial there was evidence tending to support the pleadings of the respective parties as indicated above, and further to the effect that the execution was not recorded with the deed, and had béen lost. There was no evidence as to the language of the levy entered upon the fi. fa., but a copy of the advertisement was introduced, which described the land as indicated in the sheriff’s deed. The sheriff did not testify, nor was there any testimony that the land actually levied on was not as described in the deed, nor evidence to explain the circumstances of the alleged mistake. Held, that a direction of a verdict for the plaintiff was unauthorized, and the judge erred in overruling a motion for new trial.

No. 113.

November 17, 1917.

Equitable petition. Before Judge Cox. Calhoun superior court. December 29, 1916.

Q. J. Taylor, B. J. Bacon, B. E. Ferrell, and Tf. 8. Collins, for plaintiff in error.

8. 8. Bennet, D. E. Bedfearn, and B. W. Fortson, contra.

Judgment reversed.

All the Justices concur, except Fish, O. J., absent.  