
    Thomas J. Spiller v. Nial R. Nye’s Lessee.
    The rule that monuments control course and distance, is subject to exceptions.
    The proceedings of a sheriff, at the time of levy, and preparatory to the making of it, may be proved by parol.
    The intention of the sheriff, in passing title to the debtor’s land, to levy upon a given quantity, may be inferred as well from the law regulating his duty, as from the character of the description given in the deed.
    *This is a writ of error, directed to the court of common pleas of Meigs county.
    
      The action below was ejectment. The facts of the case, and the questions presented for the consideration of the court, are disclosed in the following bill of exceptions
    Be it remembered that, on the trial of this cause,-the plaintiff having given in evidence the record of a judgment rendered in the court of common pleas of Meigs county at the October term, 1842, in favor of Hampton,' Smith & Co., against the defendant, an execution issued thereon, and levied upon lands by the following description : “A part of fraction 3, in town 2, and range 13, in section 9, in the Ohio Company’s purchase; beginning about fifty-eight rods east of the southwest corner of said fraction, at the southeast corner of a tract owned by Lewis S. Nye; thence north, twenty-three degrees west, eighty-eight rods; thence east ninety-three rods; thence south eighty-four rods, to the south line of said fraction; thence west about twenty-seven rods, to Fugate’s corner; thence north sixteen rods; thence west twenty rods; thence south sixteen rods, to the south line of said fraction; thence west twenty rods, to the place of beginning, containing forty acres, more or less,” with a return of sale to the lessor of the plaintiff, and confirmation thereof, and a deed from the sheriff, pursuant to said levy. The defendant then called Thomas Smith, who was the sheriff who made the levy and sale, who testified that, after receiving the execution, he went to the recorder’s office to get a description of the real estate of Thomas J. Spiller; that he took the same to M. Heckard, Esq., a sui'veyor, to calculate the length of lines, so as to embrace forty acres off the west end of Spiller’s tract, lying in the fraction ; that Heekard made such calculation, and he then went on the land of Spiller, in the west end of said fraction, and made a levy, in accordance with the lines given to him by Mr. Heckard, so as to embrace forty acres; that before making the levy, learning that Fugate owned a tract of about two acres in *said fraction, he went to the recorder’s office to ascertain whether said Fugate’s tract would fall within the forty acres or not; that the Fugate tract is, in fact, described in the records as being seventy rods from the southeast corner of Lewis S. Nye’s land, but that, at the time of taking said description from the records, he read twenty, instead of seventy, which would bring, said Fugate’s tract within the forty acres; and, accordingly, in making the levy he referred to Fugate’s corner, with a view of running round the Fugate tract, and excepting it ont of the levy, supposing it would come within said forty acres; that at the time of the levy the Fugate tract was uninclosed, and the location of it was unknown to him, except as he had ascertained from the records, and that he was entirely mistaken as to its location, it being, in fact, as he has since ascertained, seventy rods from the aforesaid corner of Lewis S. Nye, and without the forty acres which he intended to levy upon; and it having been further proved that to extend the second line called for by the levy, so that a line running from thence south to the fraction lino would intersect said fraction line twenty-seven rods ■ east of Fugate’s southeast corner (as that corner has since been found to exist), said second line would be one hundred and forty-nine rods and forty-eight hundredths in length, instead of ninety-three rods, as called for in the levy, and the tract embraced would contain sixty-four acres; and it having been further proved that by running said second line ninety-three rods, as called for in the levy, thence south to the fraction line, thence west to the place of beginning, so as to exclude the land claimed by the defendant, the tract embraced within said lines will contain forty-one acres; and it having been further proved that the southeast corner of Fugate’s tract was marked by a small stake at the time of the levy, although the same was not seen by the sheriff, or its location known to him at the time of the levy, and the parol evidence hereinbefore recited having been permitted to go to the jury, subject to any exceptions as to its competency, and the counsel for tho plaintiff having objected to all of the same, ^except that which proved that there was such a corner as Fugate’s corner, and that there was a stake standing at the same, the counsel for'the defendant thereupon moved the court to instruct the jury:
    1. That if they were satisfied, from the evidence, that Fugate’s corner was inserted in the levy, under a mistake as to its location, and is, in fact, inconsistent with, and repugnant to, the other points, courses, ,and distances called for, they may reject said Fugate’s corner altogether, and be governed by the other courses, distances, and objects called for in the levy and deed; and that it is competent to prove such mistake by parol.
    2. That if they find the call for Fugate’s corner to be entirely inconsistent with, and repugnant to, the courses and distances called for in the levy and deed, and if, by rejecting said Fugate’s corner, the courses, distances, and objects called for, will make' a consistent boundary, embracing the identical lands intended to be levied upon and sold, they may reject said Fugate’s corner altogether, and be governed by the other boundaries called for.
    3. That, although it is a general rulo, yet it is not an invariable one, that fixed objects, or monuments, called for in a deed, must control the courses and distances called for; but if any such object or monument is so repugnant to the other calls as to satisfy the jury that it was inserted in the levy and deed through mere inadvertency or mistake, they may reject such object or monument, and be governed by the other calls.
    4. That a fraction or section line is a definite call in a deed, and that the original surveyed line is meant and intended thereby, and that course and distance would have to yield thereto if in conflict; that where there is no call or monument named as to the termination of the line, the distance from an agreed starting-point is to be deemed the precise length of the boundary line.
    5. That where a tract of land is described in a deed as bounded by four lines, if the first three lines can be clearly *ascertained, by the description contained in the deed, they are to be taken as the true lines, and if the fbui’th line has a call that is inconsistent with itself, or is repugnant to the other lines, then such call should be rejected.
    6. That where the intention of the parties can bo discovered by the deed, the court -will carry that intention into effect, if it can be done consistently Avith the rules of law ; that a deed is an instrument to effect the intention of the parties thereto, and where the descriptive words are Avholly without ambiguity, and are followed by a clause repugnant, this clause must be rejected.
    7. That AA'here a description is given, which has not acquired a strict legal construction, or a boundary is referred to, Avhich is variable, parol evidence is admissible, in order to ascertain tho meaning and construction of the deed.
    8. That where land conveyed is described as running a certain distance by measurement, to an ascertained line, though without a visible boundary, such line is of itself a monument which will control the admeasurement, and fix the extent of land conveyed.
    
      Which motion the court overruled, and all which instru'etions the court refused to give, but instructed the jury:
    1. That if they find from the evidence, that Fugate’s corner, called for in the sheriff’s deed to the plaintiff, is; .in fact, in the south line of the said fraction, No. 3, and that the same it identified by any fixed monument, natural or artificial, such as a stake or marked tree,, that then such corner can not be rejected ; but that the lines which call for course and distance merely, without an object at their termini, must be so fun as to give effect to the call for Fugate’s corner.
    
      2. And that, in so modifying the calls for course and distance, the north lino of said tract, which calls to run east ninety-three poles, should be extended on the north line of the tract to a point due north of that point in the south line, which is twenty-seven rods oast of Fugate’s southeast corner; and from the terminus of such extended line, a line *should bo run south to the last-named point in said south line of the fraction, and thence west, following the call of the plaintiff’s deed to the place of beginning.
    And the court further instructed the jury that they must consider, as ruled out of the case, all that parol testimony hereinbefore recited, except that which tended to prove that there was such a corner as Fugate’s corner, and that there was a stake standing at the same.
    To alt which rulings and instructions by the court, the defendant, by his counsel, excepted; and jmays the court to sign and seal this, his bill of exceptions, and that the same may be made a part of the record in this cause.
    J. J. Coombs, for plaintiff in error, submitted the following authorities:
    1 Greenl. Ev. 343; Beaumont v. Fell, 2 P. Wms. 145; Thomas v. Thomas, 6 Term, 671; Hickox v. Hickox, 5 Mees. & Wels. 363; Jackson v. Clark, 7 Johns. 218; McNaughton v. Loomis, 18 Johns. 81; S. C., 19 Johns. 449; Boardman v. Reed, 6 Pet. 344; Middleton v. Perry, 2 Bay, 541; Waterman v. Johnson, 13 Pick. 266; Eliot v. Thatcher, 2 Met. 44; Crafts v. Hibbard, 4 Met. 452; Miller v. Travers, 8 Bing. 244; 1 Greenl. Ev. 328; 1 M. & S. 299; Wheeler v. Randall, 6 Met. 529; McCoy v. Galloway, 3 Ohio, 284; Davis v. Rainsford, 17 Mass. 207; Shipp v. Miller’s Heirs, 2 Wheat. 316; Preston v. Bowman, 2 Bibb, 497; Call v. Barker et al., 3 Fairf. 325.
    John Welch, for defendant in error, relied, for his defense, upon the following authorities:
    1 Greenl. Ev., secs. 227, 281, 282, 286, 288, 300; 19 Johns. 449; Barn. & Ald. 43, 51; 8 Bing. 224; 6 Pet. 328; Gates v. Lewis, Ner. 511; 7 Wheat. 7; 3 Gill & Johns. 142; 6 Cranch, 148; Conn. 335; 1 U. S. Dig. 474.
   *Avery, J.

The charge of the court gives a construction to the deed, by which the north line,.that is directed to be run ninety-three rods, is extended to 149 rods and a fraction. The south line of the tract is extended in a still greater proportion; and the tract embraced, called forty acres, is made to contain sixty-four acres.

Was this construction right?—is the question. If followed by the jury, would it convey to the plaintiff no more land, than, under a just construction of his deed, belonged to him ? This, according to the evidence, is a sheriff’s deed. He is a public officer, and all his proceedings, under an execution, are regulated by public law. When he levies upon a tract of land, he is obliged to cause an appraisement of it, under oath, to be made in this manner; fixing, as near as practicable, the true value of the tract. He can not pass the title to this land, unless the bid at public sale amounts to a given proportion of that appraised value. That he should be as exact as practicable then in his quantity, when, as here, there is nothing throughout the tract to show any difference in the quality of the land, is an obvious duty, and therefore may be fairly enough said to be his intention.

It will not be presumed, that, in selling a debtor’s land upon execution, he can be indifferent to the wrong of selling more than sixty acres for forty. He must have meant, therefore, to levy upon forty acres, to appraise forty, and to sell the larger quantity. It is be borne in mind, at the same time, that there is' no proof in the case, that this description in the levy and deed was the result of actual survey, or that any of the lines were run upon the ground till after the sale. The description of the tract itself seems to look to a fixed quantity to be struck off in future, rather than to any survey already made; for, by its terms alone, without ever going upon the ground, the quantity can be determined without mathematical exactness. Tho starting point is the only one fixed with entire certainty—except of course and distance. All tho lines, after the first, run to cardinal points of tho compass; and while the linos and angles, etc., are so exactly described that a surveyor can tell to a fraction the quantity, even ^Fugate’s corner so much relied upon to fix other corners and lines, has not, if you take the language of the description, a fixed location itself. It is to be found by running about twenty-seven rods west of a previous corner. This uncertainty, it is true, would not be permitted to disturb an actual boundary or monument, in ordinary cases, and is noticed here, only as it may show the intention.

Thus, when it is remembered who is the grantor in this deed, whence he derives his right to sell the land in controversy, and by what directions he is to be guided, there is strong reason for believing that the description was so drawn as to make sure of a given quantity, and was not drawn after any actual survey.

But wo do not admit that any principle of established law would be violated, if we allow the parol proof of certain facts rejected upon the trial. Tho proceedings of the sheriff, at the time of the levy, and also preparatory to the levy, wore, as we think, the proper subjects of proof; ’and we think it was competent to show that the records were examined; that a surveyor was called upon to ascertain what length of lines would be necessary to embrace the specified quantity of land; and, when afterward the lines wore run upon tho ground, that, by pursuing one construction, the tract would be much larger than the designated quantity, and by following others, would approach more nearly to it; that tho Fugate tract was uninclosed, and though there was a fixed corner, yet it was not conspicuous; that the sheriff went upon the land before the levy, and to show, also, that no actual survey was made.

If the sheriff, at the time of the levy, had made a real survey of tho land, and had established any monuments, or marked the lines, this could have been given in evidence, and would have been, in our courts, controlling evidence. In such a case, Fugate’s corner, if not found in the survey, would be rejected.

But whether Fugate’s corner is to b e rejected or not, we do not, in the case now before the court, intend to decide; ^because, upon viewing the whole subject, we think a court of chancery is the more appropriate ti’ibunal to exercise the jurisdiction. There, it is veiy clear, all the conflicting rights of the parties may be settled. There is another position taken in the charge which we consider erroneous. It is in extending the second line of the survey beyond its given length without an adequate cause. The reason which operated was, undoubtedly, to follow the description in the deed, so as to run the third line its designated course south, at right angles with the second, and from a point that would cause it to strike the south line twenty-seven rods, as required by the deed, cast of Fugate’s corner.

The objection to this construction is, that the monument, Fugate’s corner, which causes all the difficulty in the case, is here not permitted to exert its undoubted power, and control the course and distance of the single line directed toward it. Even if the Fugate corner is to remain, we decide that the third line must start from the end of the second, as described, and run diagonally across the tract, till it reaches, in a straight lino, the point required, twenty-seven rods east of Fugate’s corner. This construction, upon the trial, besides its violation of rule, greatly increased the size of the tract—too large before. For this reason, therefore, the judgment will bo reversed, and for the further error of rejecting the parol testimony, as above stated.

Judgment reversed.  