
    
      J. S. Bratton v. W. J. Clawson.
    
    Land of the defendant in execution, apparently a part of the tract levied on by the sheriff, which did not increase it beyond the number of acres specified, and of which no exception was made at the sale — was held, to have been properly conveyed by the sheriff’s deed which included it within die tract described by specific boundaries.
    The description of land which seems certain, and without ambiguity, for any thing appearing on the face of the deed, is not rendered uncertain by extrinsic facts.
    Where land is designated with certainty, by definite boundaries, the further description of it as “ the land on which defendant resided,” is merely incidental and may be rejected.
    Parol evidence is not admissible to contradict descriptions in a deed, which are certain.
    When a person purchases land by metes and bounds, said to contain a certain number of acres, more or less, he is entitled to all the land within the limits, whatever the number of acres may be. Yide Peaifs ex’trs. v. Briggs, 2 Mills C. R. 98.
    
      Before Withers, J. at York, Fall Term, 1847.
    The question in the case was whether the defendant had committed a trespass in causing the sheriff to sell a gin, a thrasher and a Dutch fan found in a gin house.
    The plaintiff had bought from the sheriff of York district, certain real estate levied upon under di.fi. fa. of Wm. Poag,jr. adm’r. vs. Richard Strait, sold by the sheriff, on Monday 1st March, 1847.
    The first question in the cause was, whether the plaintiff had purchased the land on which the gin-house of Strait was situated. If he had, the second question arose, whether the articles above mentioned, passed with the realty as fixtures.
    The levy was on the 10th February, 1847, and was as follows : “ I have this day levied on the defendants land, whereon he resides” &c. The deed executed by the sheriff to the plaintiff, specified the conveyance of 100 acres, more or less, and specified boundaries that included the gin-house. Mcll-hany acted as auctioneer at the sale. He said that on the occasion of the sale, he announced that the property offered was the land “on which Strait resided, said to contain 98 acres.”
    Strait was examined and said the gin-house was situated from 60 to 100 yards from his dwelling house, and was used for the purposes of his planting operations on the place of his residence. The place on which he actually resided had contained 100 acres, but, having given about 2 acres to a church, it contained, if regarded as a separate tract, about 98 acres. Six or seven years ago, he ánd one Morse purchased from Swan the lot (a small piece of land of 70 rods dimension) in , conjunction, for the purpose of erecting a gin-house, and a very good one was erected — the gin-house and lot being, in his opinion, worth 3 or 400 dollars — Morse’s interest ceased in about a year, and. he became sole owner. That Swan went around the limits of the lot which adjoined his other lands, and marked the outside corners of it, but marked no line dividing the lot from his 98 acre tract, and no such dividing line was ever marked. No proclamation was made at the sale that.the gin-house lot was excluded — nothing was said about it. Brian, the sheriff, said that he proclaimed at the sale, he was selling the land “ whereon Richard Strait resided” — nothing was said about the gin-house lot, though he knew at the time there was such a lot.
    As to whether the articles were fixtures, the evidence was, that the gin was in position, with the band around the cylinders, and around the shaft of the band wheel below, but not around the wheel itself. The thrasher was on some boards or rails in the second story of the gin-house; — not in the position which it occupied when connected with the running works of the gin for use — the fan was in a room below, though connected with the gin-house, where it always remained, being worked by hand.
    Sundry opinions were expressed as to the value of those articles, which seem immaterial on the present occasion.
    The Circuit Judge charged the jury, that the 1st question was whether the plaintiff had bought the gin-house at all. If the premises on which it stood were part of the land on which Strait resided, then he bought the gin-house. In deciding whether they were, they might properly look to the fact that the whole possession of Strait was used for a common agricultural purpose — that the evidence would have been more cogent to show they were seperate, if a tenant had occupied them for a different business, or Strait himself had so used them — that if Strait had been occupying the land where he in fact lived adversely as a trespasser, and had extended his claim to the limits of the gin-house lot, by marking (as had been done) the two outside corners, and had so held for 10 consecutive years, he would have established his right to the whole premises as one; and that to explain the levy, the terms of the sheriff’s deed might be resorted to as throwing some light on the subject, and if regarded as substantially Strait’s deed, ambiguities might be resolved in favor of the purchaser.
    They were further advised, that if Bratton bought the gin-house, then, he thought, the gin passed as a part of the fixtures — that the fan did not (which indeed was conceded by the plaintiff’s counsel) — and as to the thrasher, he saw no evidence that it was fixed in any manner to the freehold; the rule being that things of this kind must not only partake of the character of necessary appendages to a freehold bought, for planting purposes, but must also be in some manner affixed to the freehold. He did not go farther in the position he tools in regard to the thrasher.
    The ju-ry came in, after their retirement, to enquire whether the auctioneer said he stated he was selling the tract of land on which Strait resided, containing 98 acres, more or less, or whether the latter words were omitted. Uponbeing'told the words were “ the land on which Strait resided, said to contain 98 acres,” they again retired, and finally rendered a verdict for the defendant.
    The plain tiff appealed, 1st. Because the “ gin-house” was situated on the tract of land whereon R. Strait resided at the time said tract of land was levied on by the sheriff of York district, and was conveyed to the plaintiff by the deed made by the sheriff.
    2nd. Because the cotton gin and thrasher, in said gin-house and attached thereto, were fixtures, and passed under the deed conveying the land to the plaintiff.
    3d. Because the defendant was a trespasser in taking and carrying away from the said house, the cotton gin and thrasher, and the finding of the jury for him was without evidence and against law.
    
      Williams, for the motion.
    
      Witherspoon, contra.
   Frost, J.

delivered the opinion of the Court.

The plaintiff was so clearly entitled to recover the value of the gin, that the verdict for the defendant could have been rendered only on the assumption that the gin-house had n'ot been conveyed to the plaintiff. The- return of the jury, after they had retired for consultation, to be informed, precisely, what the auctioneer said when he offered the land for sale, confirms this conclusion.

The deed to the plaintiff describes the land conveyed by specific boundaries, and as containing one hundred acres, more or less. The piece of land, on which the gin-house is situated, measuring less than an acre, is contained within the boundaries, mentioned in the deed. Exclusive of this piece, the tract contained 98 acres. The levy was of “ the defendant’s land, whereon he resided.” The gin-house had been purchased and added to his tract by the defendant.- Parol evidence was admitted to shew that it was not sold to the plaintiff. The sheriff said he announced for sale, “ the tract of land on which the defendant resided.” The auctioneer said he declared the sale to be of “ the land on which Strait resided ;■ said to contain ninety-eight acres.” No exception was made of the gin-house by either of these witnes-nes, nor by Strait, who was present at the sale. The evidence is insufficient to support the verdict. The gin-house, as a very important part of the settlement, was included in the offer for sale, both by the sheriff and auctioneer, when it was said to be the land on which the defendant resided. Even if the verdict was rendered exclusively on the evidence of the auctioneer, his statement that the tract contained 98 acres should not be enforced with such exactness as to prevent the plaintiff from claiming 98|- acres, under the general description of the tract, as that on which the defendant resided ; more especially since there is nothing to shew that, if he is limited to 98 acres, the surplus half acre is the gin-house lot.

2 Mill C. R. 98.

1 Plowd. 191, & Com. Dig. E. 4.

But the deed is conclusive evidence of the plaintiff’s right to the gin-house. It does not present a case of latent ambiguity, which parol evidence may be received to explain. The description of the land, which seems certain and without ambiguity, for any thing appearing on the face of the deed, is not rendered uncertain by extrinsic facts. The land is identified by the boundaries mentioned in the deed. If the deed had contained no other description of the land, than as that on which Strait resided, parol evidence would have been proper to locate and shew its extent. But when it is designated, with certainty, by definite boundaries, the further description of it as the land on which Strait resided,” is merelyi ncidental, and may be rejected. On this subject the rule laid down in Shepperd’s Touchstone is, “ that when there is in the first place a sufficient certainty and demonstration, and an additional term of description, which fails in point of accuracy, it shall be rejected as surplusage.” Visible marked lines and natural objects present the greatest certainty. These do, in effect, enter into a description by boundaries. When a person purchases lands by metes and bounds, said to contain a certain number of acres, more or less, he is entitled to all the land within the- limits,' whatever the' number of acres may be. Peay’s ex'trs. v. Briggs. Where a lease was made of all the farm of Brogly, in the tenure of R. W., which was not the fact, the Court said the word “'farm” had certainty in itself, and when the description went further and said in the tenure of R. W., this was of no effect; for though it was not in his occupation, yet it should pass, because there was a certainty in the thing demised, viz. the farm of Brogly; and so another certainty, put to a thing which was certain enough before, was of no manner of effect. So in this case, the certainty, which the boundaries express, is sufficient to pass all the .land included in that description. .The addition of‘more or less5 to the number of acres, shews that the land was sold by the metes and bounds, and not by the acre. The further-description of the land, after it was already designated with certainty, as that on which Strait resided, can he of no effect.

3 ggg01 1

But the purpose and effect of the evidence introduced was, not to ascertain what land was included within the des-, scription of the deed, but to prove that the gin-house was not sold by the sheriff. The case of Barkly v. Barkly is a direct authority in this. The defendant in execution was entitled to two shares in the undivided tract of land, each con-iaining thirty acres. The levy was of “ one hundred acres, more or less, on which the defendant lives, being part of an undivided tract.” The deed conveyed “ one hundred acres of land, more or less, being the undivided part of a tract of land, belonging to the estate of John Miller, deceased.” The testimony of the auctioneer and by-staoders was offered to prove that only one share was put up for sale ; and also proof that the sheriff had sold and conveyed the other share, under a subsequent levy. The evidence was rejected, because the description in the deed was certain and included both shares ; and because the admission of the evidence would contradict the deed.

The motion is granted.

RichardsoN, J. O’Neall, J. WaRdlaw, J. and Withers, J. concurred.

Motion granted.  