
    Swan’s lessee vs. Parker and Collier.
    Where a constable made a return on an execution issued by a justice of the peace in these words: “Levied on the tight, title, claim, and interest, that J D has in and to seventy acres of land, lying on the waters of the west fork of Stones River, no personal property to be found:” Held, that the return was sufficiently certain to authorize a condemnation of the land by the county court.
    Whether the land embraced in the sheriff’s deed, and that sued for in ejectment, is the same that was sold under the levy, is a question of boundary and locality, and one proper to be left to the jury.
    Where the return of the officer in his levy, and the deed of the sheriff, leaves it uncertain whether the lands embraced in the sheriff’s deed and those described in the levy, are the same, the purchaser at the sheriff’s sale is allowed to show their identity by parol or otherwise.
    This being an action of ejectment, the lessor of the plaintiff in the court below, produced and read to the jury a grarit from the State of North Carolina, for five thousand acres of land, on both sides of the west fork of Stone’s river, which, by its calls, included the land in controversy. He then read a deed from said William Gill to James Doak, the ancestor of John Doak, under whom the lessor of the plaintiff claimed, for two thousand acres of said land, which also covered the land in dispute. He then introduced and read to the jury, the record -of a partition made between the heirs of James Doak, deceased, of this twenty-one hundred acres of land, from which it appeared that lot No. 4, in said division for one hundred and forty-eight acres of land, was partitioned and allotted to John Doak, “beginning on a double chinquepin oak and small white oak, the northeast corner of lot No. 3, runs thence north, sixty poles, to a dogwood; thence west three hundred and ninety-three poles to a hickory and small ironwood; thence south sixty poles to an elm, north-west corner to lot No. 3; thence east three hundred and ninety-three poles to the beginning.” The lessor of the plaintiff then read to the jury the copy of a record of the county court of Ruther-lord county, from which record it appeared, that on the 7th day of May, 1830, the lessor of the plaintiff, Moses Swan, recovered two judgments before a justice of the peace, against William Blakely, Moses Ashbrooks and John Doak, one for fifty-one dollars and fifty-seven cents, the other for sixty-eight dollars and eighty-three cents; and that on these judgments executions had issued, and were returned to the county court of Rutherford, with the following endorsement: “levied on the right, title, claim and interest that John Doak has in and to seventy acres of land, lying on the west fork of Stone’s river; no personal property to be found. May 12th, 1830.”
    At the May term, 1830, of said county court, the said land so levied on. was condemned to be sold to pay and discharge said judgments. Upon this order of condemnation, writs of venditioni exponas issued, and the land was sold on the 31st July, 1830, and purchasedfby the lessor of the plaintiff for twenty dollars. On the 30th of July, 1831, writs of fieri facias were issued on the above judgments; they not having been satisfied, and additional levies on the one hundred and forty-eight acres of land, being lot No. 4, were made. The one hundred and forty-eight acres was sold on the 14th Nov. 1831, to the lessor of the plaintiff for twenty dollars. The seventy acres first sold being'part of said one hundred and forty-eight acres. The lessor of the plaintiff then read to the jury two deeds from the sheriff, one for seventy, and the other for one hundred and forty-eight acres of land. The plaintiff then proved by witness, that the land embraced in the two deeds of the sheriff, lay within the boundaries of lot No. 4, as above described. He then offered to prove by witness, that the land levied upon and sold under the condemnation, was the only tract of land belonging to John Doak, in Rutherford county; but this evidence was rejected by the court, to which the lessor of the plaintiff excepted. The defendants then read a deed from John Doak for the same land to themselves, dated after the constable’s levy, but before the levy under the Fi. Fa. They admitted they claimed title under the same grant, and that they were in possession of the land at the institution of the suit. The court charged the jury among other things not objected to, “that the levy made by the constable on the land, of the 12th of May 1830, upon which the judgment of condemnation was founded, was void, for vagueness and uncertainty, and that the lessor of the plaintiff could have no benefit from said levy.” This part of the cbaige wras excepted to by the lessor of the plaintiff. The- jury returned a verdict for the defendants, and the plaintiff’s lessor having moved for a new trial, and the same beiug overruled by the court, he appealed in the nature of a writ of error' to this court.
    
      8. D. Rowan and £• J. Hoover, for plaintiff in error.
    
      C. Ready and J. Rucks, for-defendants in error.
   Peck J.

delivered the opinion of the court.

There are many points made in the cause, though perhaps it may not be necessary to notice any of them, except that on the charge of the circuit court declaring the constables levy void for vagueness and uncertainty.

It is insisted the description of the land, as the same is designated in the levy, is insufficient: “levied on the right, title, claim, and interest, that John Doak has in and to seventy acres of land lying on the waters of the west fork of Stones river; no personal property to be found, May the 12th, 1830.” The description necessary to be given of the land levied on, has not frequently been directly made a question in our courts; it might be difficult to lay down a general rule by which officers could be directed in making them, or the courts be governed in deciding upon them when made; in the case before us, there is the quantity of land, the name of , \ . , , • the owner, and the water course whereon the same is situated.

There may not be certainty to every intent, nor is it necessary there should be in such a case; certainty to a general intent, such as would put the owner and purchasers upon inquiry, affording the means of complete information, is all that can be expected. But the levy of itself should not be laid hold of, because it is supposed not to point minutely to the estate set apart the for satisfaction of the debt. The advertisement should, and we may reasonably suppose has, with greater identity, fixed the locality. The officer is supposed to have done his duty, and the maxim, id certem est certain reddi potest, has application. The deed, we know usually follows, and amplifies the description in the advertisement; none of these should be inconsistent with the levy. If a case was presented where the description was inconsistent with the levy, where there was a want of fitness,’there, indeed, the court would look to the discrepancy with vigilance, to see that a fraud through such a guise should not be let in. This is not such a case.

The plaintiff had a right to his evidence; locality and boundary are questions for the jury. We cannot know but in the proof, particularly the advertisement which may be produced, but that the plaintiffs would have made that certain, which, from the return, might have appeared doubtful; still this is proof which might have been rebutted. On this point alone, we are of opinion the judgment must be reversed.

There is another point in the cause which may seriously affect the plaintiffs’ right under his execution, and that point is, to what time shall the lien relate; shall it relate to the levy, or shall it relate to the condemnation upon the return into court.

'I his question, so far as I am informed, is new; and as it has not been debated, we will not gire a hasty opinion upon it.

Judgment reversed.  