
    Treon’s Lessee v. Emerick.
    Levy and sale on execution of a tenant in common’s interest, as by specified metes and bounds, is good for his undivided proportion within such boundaries.
    Plaintiff in ejectment may recover for any interest he may prove a title to, less than the claim in the demise.
    Sixty acres, part of north half section 13, insufficient description of land sold for taxes.
    
      This case was adjourned from the county of Montgomery, and came before the court upon an agreed statement of facts.
    In 1820, Dehart, from whom both parties claim title, conveyed the lands in dispute, being sixty acres, to Regal, Hubbler, and Jacoby. In 1827, Jacoby conveyed his undivided third part to Treon, the lessor of the plaintiffs. In 1820, a judgment was recovered against Hubbler and Regal, upon which execution was issued against them, which, in August, 1820, was levied upon their interest in this land. A sale was effected upon a subsequent execution in 1827, and Treon became the purchaser. The levy is in these words: “No goods levied on forty-three and a half acres of land on the east side of a tract of sixty %eres, that Dehart [392 conveyed to Jacoby, Regal, and Hubbler, in the west half of section 13, T. 3, R. 4, east of M. D. Said land to be run off by a line the same course with the east boundary'of said sixty-acre tract; said levy is made only to include Regal and Hubbler’s interest in said land.”
    The appraisement under vrhich the land was sold by the sheriff was of an undivided third part of the sixty acres. The sheriff’s deed recites the levy truly, and the appraisement of two undivided third parts of sixty acres, and proceeds to convey to Treon “ the premises so taken.”
    The defendants were in possession under a sale for taxes made in 1822. The description of the land in the duplicate and advertisement of sale is as follows: “Not known (owner’s name), R. 4, T. 3, S; 13, p. N. half sixty acres.”
    Odlin, Grane, Schenck, and Stoddard, for plaintiff:
    The agreed case admits the legal title to have been in Jacob W. Dehart, on October 8, 1816, and both claim under his title — the plaintiff by sheriff’s sale, the defendant under tax title.
    The first question that presents itself is, does the levy, sale and confirmation, and deed convey a good title (to the lessor of the plaintiff) to the undivided two-thirds of the sixty acres, of which it is admitted the judgment debtors, Regal and Hubbler, were then seized.
    The levy, though it attempts to effect a partition by calling Regal and Hubbler’s interest as forty-three and a half acres, is evidently, in intention and fact, a levy only on Regal and Hubbler’s interest, and is so declared, being two-thirds of the sixty acres; the appraisements made appraise the whole land, and deduct the outstanding third of Jacoby. And by the execution of August 9, 1827, under which the sale was made, it appears to have been advertised and sold as the undivided two-thirds of said sixty acres.
    The decisions go strongly to sustain the title of a purchaser under a sheriff’s sale. In the case of Wheaton v. Sexton, 4 Wheat. 503, it is said : “ Whether the marshal sells before or after the return, whether he makes a correct return or no return at all to the writ, is immaterial to the purchaser, provided the writ was duly issued, and the levy made before the return.” This doctrine is 893] recognized in the case of Lessee of Allen v. *O. Parrish, 3 Ohio, 191. And it has been frequently decided that the title of a purchaser under a ft. fa. et lev. is not affected by an irregularity in the proceedings. 1 Maule & Selwyn, 425; 5 Barn. & Ald. 746; 3 Johns. 97; 1 Gallison, 419; 8 Johns. 361; 1 Johns. Cas. 153.
    In the case of the Lossee of Matthews v. Thompson and others, 3 Ohio, 272, 274, it is said, “ a variance between the levy and the deed may be explained by parol; if the levy was actually on the tract contained within the deed, and that fact was known and understood at the time of the sale, no injustice has been done; an innocent purchaser ought not to suffer by the careless manner in ’which the officer has returned his proceedings, if, in point of fact, they have been substantially correct.”
    In the case of Douglass v. McCoy, 5 Ohio, 524, that a defect in a levy may be supplied by parol, and that proof was the order of confirmation, identifying the land, which was carried into the deed, and, in the absence of proof, would perhaps lead the court to presume, if necessary, that the part conveyed was the part appraised, and was duly described in the advertisement. The levy is made upon a tract of sixty acres, described to be conveyed by Jacob W. Dehart to Jacoby (1), Regal (2), and Hubbler (3), and declares that it is made to include Regal and Hubbler’s interest; that interest from the statement of the conveyance itself, contained in the levy, is two-thirds of the whole sixty-acre tract. It may be contended that the levy was upon the two-thirds interest in the íbrty-three and a half acres part of said tract.
    To this it is answered, that in the cases above cited of the Lessee of Matthews v. Thompson and others, and Douglass v. McCoy, the court have said, that a defect in a levy may be supplied by parol. However defective the amount of interest levied upon may appear in consequence of not naming at first sixty acres instead of forty-three and a half, yet the object and intention of the sheriff is explained and rendered manifest by the appraisement which he made (and of which the court have the original), by immediately causing his appraisers to appraise the whole sixty acres, and the deducting one-third for the outstanding interest of Jacoby, and by the fact that it was advertised and sold as the two-thirds of sixty acres, or rather as the undivided interest of Regal and Hubbler, in the whole tract of sixty acres. If, then, any doubt rested upon this levy, *the officer has himself explained it ; [394 as such the court confirmed the sale, and if the act of examination and confirmation by the court, and an order to make the deed for the undivided interest of Regal and Hubbler, is to bo of any value to an innocent purchaser, surely it is not contending too much to say, that the court were satisfied that the levy was upon the undivided two-thirds of the whole sixty acres, and so ordered the sheriff to convey, and thereby established and confirmed the construction placed upon the language of the levy by the plaintiff’s counsel, and which construction maybe fairly and properly drawn from that levy.
    In the language of the court in Matthews v. Thompson, before cited, it has been fully appraised, and fairly sold. No injustice has been done, and an innocent purchaser under such circumstances ought not to suffer.
    If, however, the court should differ from the plaintiff’s counsel and should be of opinion that the levy was a levy only upon Regal and Hubbler’s interest in the forty-three ind a half acres part of said tract of sixty acres, they still claim to recover under the authority of the case of the Lessee of White v. Sayre, 2 Ohio, 110. 2. By the agreed case the lessor of the plaintiff presents an undisputed legal title to one-third of the premises, by deed from Jacoby. But it is understood by a memorandum of objections furnished by defendant’s counsel, that upon that he can not recover, because, say counsel, the demise laid in the declaration is for the whole sixty acres, and not for an undivided interest.
    It is supposed that this objection is decided against the defendant beyond all controversy or cavil.
    In the case- of the Lessee of White v. Sayre, before cited, 2 Ohio, 115, Judge Burnet says, “ if a person declares for an entire tract, and proves title to a moiety only, he shall recover so much ; and again, the point can admit of no doubt, the plaintiff must recover according to his title,” and cites 2 Lev. 334; 2 Bibb, 350; Bull. N. P. 109. In Burgess’ Lessee v. Purvis, 1 Burr. 326, Lord Mansfield says, “it is an exceeding plain case, that part maybe recovered on a demise of the whole.
    In Adams on Ejectments, 188, it is said, “ under a demise for the whole, an undivided moiety may be recovered.” Doe, on the demise of Bryant, v. Whipple, 1 Esp. 330; Jackson v. Sidney, 12 Johns. 185.
    395] *It is contended, then, that the lessor of the plaintiff, has shown a legal title to recover at least a part, unless he is barred by some other cause than the objections urged to his title.
    For this purpose the defendant sets up a title derived from a sale for taxes delinquent in the years 1820-21.
    “ This title can not be established unless he shows the authority of the collector and the regularity of his proceedings. Great strictness has always been observed. The purchaser buys at his peril; the maxim, caveat emptor,’ applies.” Lessee of Holt’s Heirs v. Hemphill’s Heirs, 3 Ohio, 234.
    Under the provisions of this act, by the extract from the duplicate of 1820, it appears: “ Dechant — 60, 1, 2, 3 — R. 4, T. 3, S. 13 — ■ for N. half! — $1.50.
    And on the duplicate of 1821, it appears that the name of “ Dechant ” was omitted, notwithstanding the positive requisition of the statute, and entered thus: jxj —60, 1 — R, 4, T. 3, S. 13 — for N. half — $2.86.5.
    It also appears by the certificate of extracts, and copy furnished by the county auditor for the court in bank, and which have been forwarded, that although a certificate of an oath was attached to the duplicate, as required by section 30, yet that it was never sworn to. This fact does not appear by Certificate furnished by defendants, but is apparent by the one furnished' the court by plaintiffs.
    The land was advertised for sale, as follows: “Not known— R. 4, T. 3, S. 13 — for N. half — 60, 1 — $4.14.4—sold.”
    It is objected; 1. That the land was not properly listed under the statute, the owner’s name being known,-as evidenced by the duplicate of 1820, “ Dechant.”
    2. That the list of delinquent lands was never sworn to as required by the statute, section 30.
    
      3. That the land was never properly described by quarter section or lot, nor is stated whether east or west of Miami river; there being asimilar section, range, township, and quarter east and west of said river. See Hough and Bourne’s map of state and section.
    4. That it was never advertised in a paper at the seat of government.
    Upon the objection that the land was not described by quarter or lot, we confidently rely as defeating the defendant’s title; it is listed in direct opposition to the words of the statute, which requires that the quarter section or lot shall be designated ; it affords no notice to the owner: “Not known, sixty acres,” *part [396 of the north half of a section could convey to Dechánt no information. In Lafferty’s Lessee v. Byers, the court say, “that the description should be such that the owmer may know that the tax is unpaid on his land; and that the purchaser may know or learn the precise tract intended, and be'enabled to estimate its value.” Lessee of Matthews v. Thompson, 3 Ohio, 569; Lessee of Massie’s Heirs, 2 Ohio, 293; Ronkudorff v. Tayton’s Lessee, 4 Peters, 350.
    Fales, and P. P. Lowe, for plaintiff:
    The deed from sheriff to plaintiff is of two undivided third parts. The levy was made on a several interest, not an undivided one. If a deed by a private individual had been made with a similar description, showing, as in this case, from what part of the tract the land was to be taken, such a deed certainly could not convey an undivided interest. If this view is correct, the undivided interest of the two defendants was not levied on. The land was held in common, and they had a common interest in every part of it until there was a partition. The interest levied on and that sold were entirely different. Two-thirds of an undivided interest in sixty acres were sold, and forty-three and a half acres of the same by metes a.nd bounds were levied on. Theinterest of Jacoby was levied on and sold, inasmuch as he had an interest in the forty-three and a half acres as much as in any other part of it. That interest of Jacoby, being a tenant in common of the whole, could not be levied and sold, as the judgment was not against him. 3 Ohio, 196. Levy of an execution upon the lands and a sale by the officer are essential to a purchaser acquiring the same interest in the land that the judgment debtor had. French v. Lord, Adams 42. An execution against one holding land as a tenant in cornmon can not be extended on a part of the land as holden by metes and bounds. 12 Mass. 348. Execution against the land of a joint tenant or tenant in common can not be levied upon any particular portion of the land ; it must be levied on the debtor’s share of the estate in the whole land. 2 Conn. 213, 244, in notes. Lands of one tenant in common can not be extended by metes and bounds, but the execution must be spread over the whole land, and such undivided proportion thereof must be set off to the creditor to satisfy his debt. 4 Greenl. 230. Rules of construing conveyances by 397] deed and extentare *the same. The number of acres levied on was more than the proportion of two defendants in the execution in the tract. The judgment and the execution being against two of the tenants in common, the interest of the other tenant in common, Jacoby, could not be sold, and the sale, therefore, could not be valid, as his interest was in fact sold, that interest being an undivided third part of the whole tract. Tenants in common may have a partition. If a levy and sale founded on it like the present should stand, it would defeat the rights of the tenants in common. J. W. Dechant and wife conveyed by deed, bearing date February 3,1820, to Henry Jacobjr, Matthias Rigol, and Michael Hubbler, re? corded September 21,1820, the premises in dispute. Thepart levied on is described very particularly in the levy. The description applies to the whole tract, and the meaning of it can not be controlled by the concluding words in the description.' If the sale of the sheriff is void as to two-thirds of the tract, it is further insisted, on behalf of the defendant, that the plaintiff can not recover the third part of the tract conveyed to him by Jacoby .by deed, under the declaration in this case, because it is a rule of law, that when the plaintiff sues for an entire tract, he can not recover an undivided portion. 4 Stark. Ev. 541, n. 1. Where an entirety is demanded in ejectment, there can not be a recovery of an undivided part, the notice of such recovery being considered different from that oftheclaim. Young v. Drew, 2 Hayw. 100. Evidence of title toan undivided moiety in ejectment will not sustain a count for the whole tract. Carroll et al., Lessee, v. Norwood’s Heirs, 5 Har. & J. 164. If a person claims one hundred acres, less, than one hundred may be recovered. If he claims an undivided moiety, an undivided third may be recovered, or any undivided portion less than a moiety, but he can not recover an undivided part, when he claims an entirety, nor an entirety when ho demands an undivided portion. 7 Har. & J. 208. Where an entire tract is sued for, less than the whole may be recovered, but it must be an .entire and not an undivided interest.
    Again, the defendant insists that he has a good title to the premises in dispute. They were conveyed by deed in fee simple on a bona fide purchase to him by Elisha Brabham. They were sold to said Brabham by the auditor of Montgomery county for taxes, and a deed made to said Brabham for the same by the auditor of Montgomery county agreeably to law. The ^validity of [398 the tax sale is resisted by the plaintiff. On behalf of the defendant, it is insisted that the title by the tax sale is good and valid. The evidence necessary to support a tax title is stated in the following case : Lessee of A. Carlisle v. N. Longworth, 5 Ohio, 374. The court say that before the deed made by the county auditor can be received in evidence, it must be shown that he had authority to make it. And that that is done by showing that the lands have been advertised and sold for the taxes, and that all that is required to be made matter of record in the auditor’s office, and that there can be no difficulty in procuring the evidence, and that in connection with this preliminary evidence, the deed will be received, and the legislature has declared its effect.
    The evidence required by the court in support of a tax title in the preceding case, is furnished by a certified copy of the record of the county auditor of Montgomery county. It appears by that, that the lands had been advertised, except at Columbus, and sold for the taxes of 1820 and 1821. With this evidence, if the advertisement at Columbus was unnecessary, the tax title in this case is sustained agreeably to the rule laid down in the last case. The law, as observed by the court in the said case, has declared the effect of the deed of the auditor, see 18 Ohio L. 85, section 40, that all deeds of land sold for taxes,’shall convey to the purchaser all the right, title, and interest of the former proprietor in and to the land so sold, and shall bo received in all the courts as good and sufficient evidence of title in such purchase.
   Judge Lane

delivered the opinion of the court:

The levy appears to have been made with the intention of covering the whole interest of Eegal and Hubbler in the sixty acres. But it is so made as to fail in effecting that object. Eegal and Hubble'r held a joint interest with Treon, the purchaser from Jacoby, and this joint interest could not be separated by a levy, without investing the sheriff with an ex parte power of making partition. The levy is specific and confined to forty-three and a half acres. The boundaries are specially defined, and consequently the levy does not touch the remainder of the tract. The question then arises, whether these proceedings convey the land within them? We consider this point decided by the case of 2 Ohio, 113. There a majority of the court held, that a deed which 399] purported to convey an estate in severalty, *in which the grantee held a tenancy in common, was operative to pass the interest of the grantor to his undivided part within the limits described in the deed. The deed of the sheriff operates in the same way, and conveys to the purchaser two-thirds of the forty-three and a half acres of land.

In this view of the case, the plaintiff is entitled to forty-nine acres of the sixty, and not to the whole tract as he claims. Tet he is permitted to recover to the extent of his proof of title. The verdict and judgment may be for any amount of land less, than the whole quantity claimed in the demise. 2 Stark. Ev. 540.

The tax title set up by the defendant can not be sustained. The description in the duplicate and advertisement is too vague and uncertain: “ Sixty acres, part of the north half section 13.” Which sixty acres, is an inquiry natural to be made. In Lafferty v. Byers, 5 Ohio, 458, it is held that such description is too general. The tax sale must be held void.

Judgment for the plaintiff.

Defendant asks, and is allowed the benefit of the occupying claimant law.  