
    Samuel M. Heath et al. vs. Reuben B. Newman.
    It is the settled rule of this court, that in cases free from fraud, where the defendant has been put in possession under a deed with general warranty, nothing short of actual eviction, constitutes a defence to an action on the note for the purchase-money.
    Where therefore, in an action on a note given for land, the defendant attempted to show, that the land had been subsequently sold under an execution issued on a judgment against the vendor, older than his sale to the defendant, but the court below ruled out the sheriff’s deed for alleged defects in it; it was held by this court, that the plaintiff below having made out a primd facie case by the production of the note, the verdict of the jnry in his favor would not be disturbed, and the court would not inquire into the propriety of the court below, in ruling out the sheriff’s deed, because the defendant below did not show any eviction, and thus make it appear by the record, that, had the deed been admitted, it would have availed him any in his defence.
    
      In error from the circuit court of Claiborne county; Hon. Thomas A. Willis, presiding judge.
    Reuben B. Newman sued Samuel M. and Adolph Heath, and others, on a joint note for fifteen hundred dollars.
    The cause was submitted to the jury on the plea of general issue.
    The plaintiff read in evidence to the jury the note sued on, and rested his case.
    When defendants proved by T. R. Dennis, who was the payee of the note, that the note sued on was one of four notes of $1500 each, given by Samuel M. Heath and Adolph Heath to witness, for a tract of land in Claiborne county, to wit, part of fractional section number 39, township 11, range 2, east, sold by witness to Samuel M. Heath for $6000, and conveyed to him by deed, bearing even date with said note. The defendant then read in evidence to the jury, the deed from T. R. Dennis to Samuel M. Heath, dated 25th of January, 1839, being a general warrantee deed for “ all that tract of land in the county of Claiborne, state aforesaid, being a part of fractional section number 39, in township 11, range 2, east, laid off as follows, to wit, beginning at a stake on the west sectional line, running thence with the Osborn tract to a poplar, near the state road, marked O, one of the corner trees of the Osborn tract; thence in an easterly direction, so as to include two hundred and twenty acres and seven-eighths of an acre, except twenty-six acres owned by Adolph Heath, together with appurtenances, &c.; ” which deed was duly recorded on the 3d of May, 1841.
    The defendant then read in evidence to the jury, the recording of a judgment by James E. P. Bacon against Thomas R. Dennis and David Reuly, in Claiborne county circuit court, on the 30th of May, 1838, for $309-25; also execution thereon, and forthcoming bond taken and forfeited in November, 1838, with James A. Dennis, security; an execution on the bond to May term, 1839; and the sheriff’s return of levy and sale thereon, as follows, to wit: “Levied on all the right, title, claim, and interest of defendants, James A. Dennis and Thomas R. Dennis, to five hundred and sixty acres of land, being the north-west section, number 15, and south-west quarter, and west and west-half, south-east quarter of section 10, township 11, range 1, west, Claiborne county. Also a part of fractional section 39, to be laid off as described in a title bond from Samuel Heath to Philanzo Payne. And,due notice having been given according to law, the tract described as being part of fractional number 39, was sold at public sale, and Joel Perkins being the highest and final bidder, became the purchaser of the land at' the price of |>325. —R. J. Bland, Sheriff.”
    The defendant then offered to read to the jury the deed of R. J. Bland, sheriff, to Joel Perkins, dated 11th of May, 1839, in which the sheriff recites the execution of James E. P. Bacon against Thomas R. Dennis and others, and numerous other executions, all which of were levied on “the right, title, claim, and interest of James A. Dennis and Thomas R. Dennis, of and in a certain tract, piece, or parcel of land, it being a part of fractional section number 39, in Claiborne county, to be laid off as is described in a title bond from Adolph Heath to Philanzo Payne, recorded in the probate clerk’s office of said county.”
    To the reading of the sheriff’s deed the plaintiff excepted, and the court ruled out the deed, on the ground that it did not appear to convey the same land that was levied on in the execution.
    They then offered to prove, in connection with said deed, by Joel Perkins, that the land described in it was the same land described in the deed from Thomas R. Dennis to Samuel M. Heath, and the same land levied on and sold by the sheriff on said execution ; but the plaintiff objected to the evidence, and the court ruled out the same as incompetent, to which opinion of the court ruling out said testimony, the defendant excepted. Other testimony of a similar nature was also offered, and on objection, ruled out; but in view of the opinion of the court, it is not deemed necessary to detail it.
    The jury found a verdict for the plaintiff for the full amount of the note sued on, with interest; and the defendants below sued out this writ of error.
    
      
      H T. Ellett, for plaintiffs in error.
    1. By reference to the record, it will be perceived that the main question in this case is, the admissibility of parol evidence, or of any evidence at all, written or parol, to prove the latent ambiguity in the description of the land in the levy on the execution. The court below ruled out the deed. On the subject of its admissibility, in connection with the other evidence offered to show the identity of the land levied on with the land sold, the ■ court is referred to the brief filed by the counsel for defendants in error in the case of Dennis v. Heath et al. (post, 206.)
    2. It is further insisted, however, in this case, that the peremptory rejection of the sheriff’s deed, in the first instance, was an error for which the judgment must be reversed. The court below assumed that there was such a repugnancy in the two descriptions, that it was impossible to show that they both referred to the same land. Now, there was no such necessary repugnancy. The levy refers to a title bond from Samuel Heath; the deed, to a bond of the same nature from Adolph Heath. Now, it is not impossible that both bonds existed. There may have been a bond from Samuel, and also one from Adolph; and upon being produced, it might have appeared that both described the same land, and thus every incongruity have been removed. The deed need not describe the land in the words of the levy. It is only necessary that it should be capable of identification in a legal way, and the defendants below ought to have had an opportunity to show, by the production of the documents referred to, or in any other legal way, the identity of the land, Duncan v. Watson, 2 S. & M. 135, 136.
    
      J. B. Thrasher, for defendant in error.
    1. The court below properly ruled out the sheriff’s deed; for, 1st, the deed was void for want of certainty; neither the township, nor range, containing fractional No. 39, is specified in said deed. Gibson v. Hughes, 6 How. 315. There must be sufficient certainty in the description of the land to point to its locality, and distinguish it from other tracts of land. Doe ex dem. Holley v. Curtis, 3 How. 234. 2d, the land conveyed was not the land levied on, advertised, and sold by the sheriff. [Counsel here showed the discrepancies between the bond and levy.]
    If the description in a conveyance be so uncertain, that it cannot be known what estate was intended, the conveyance is void. 4 Mass. 196, 205. And where the description of the estate intended to be conveyed, includes several particulars, all of which are necessary to ascertain the estate to be conveyed, no estate will pass, except such as will agree to every particular of the description. 4 Mass. 196 ; 7 Johns. 217.
    2. The court properly ruled out the testimony of Joel Perkins, because the deed called for land in township 11, range 2, east, to be laid off, as described in the title bond from Adolph Heath to Payne. The land levied on, advertised and sold, was in township 11, range one, west, to be laid off, as described in a title bond from Samuel Heath to Payne. The conveyance being void in its written description, parol evidence was not admissible to supply the omission. 1 Pick. R. 31; 16 Mass. R. 86; Sugd. Vend. 114, 115.
    Parol evidence, in connection with a deed, is not admissible to prove that a particular tract of land was intended to be conveyed ; nor to explain an ambiguity, where the subject-matter does not meet the description. Carmichael v. Foley, 1 How. 591.
   Mr. Justice Clayton

delivered the opinion of the court.

This case turns upon a principle, already decided more than once by this court. It is an attempt in an action on a promissory note, given for the purchase of a tract of land, to make defence because of a failure of consideration, in this, that the land had been subsequently sold under an execution issued on a judgment against the vendor, rendered before the purchase of the defendant. No eviction was shown.

The case in the court below turned on other points; the sheriff’s deed was excluded from the jury, because of objections to it. Yet we cannot overlook or disregard the settled rule, that in cases free from fraud, where the defendant has been put in possession under a deed with general warranty, nothing short of actual eviction constitutes a defence to an action on the note for the purchase-money. Hoy v. Taliaferro, 8 S. & M. 727; Duncan v. Lane, Ib. 744.

It is not shown in this case, whether the defendant was put in possession of the land, nor what were the covenants of the deed. But the plaintiff made out a prima facie case, by the production of the note; and we cannot say there was error in the judgment of the court below, unless the defendant had put enough in the record to prove that he was in a situation to insist on the defence.

The judgment is affirmed.  