
    Thomas R. Dennis vs. Samuel M. Heath et al.
    It seems, that where a vendee has been put into possession under a deed, with warranty, of real estate, and has afterwards voluntarily surrendered his possession, and yielded his right without an effort to maintain it, to one claiming under a purchase at sheriff’s sale, under a judgment against the vendor, older than the deed to the vendee, yet made during the possession of the vendee, such voluntary surrender, and yielding of his right, will not amount to an eviction of the vendee; and will not constitute a defence to an action on the note for the purchase-money, by the vendor against the vendee.
    A mere judgment in ejectment without actual eviction, is not a breach of the covenant of warranty ; it does not destroy the seisin of the defendant; there must be an entry under the judgment, either with, or without execution. Yet, if at the time of sale, there be a paramount title, and an adverse possession under it, the keeping the purchaser out is equivalent to an eviction.
    Where there is a difference between a judgment, as entered upon the minutes of the court, and as contained in the final record made up and entered by the clerk, the former constitute the true record in law, and must be preferred ; the latter is a mere copy of the former, and but the act of the clerk ; while the former is the act of the court.
    An appeal from the circuit court of Claiborne county; Hon. Stanhope Posey, judge.
    
      Thomas R. Dennis, use of Jacob Rickhow, president of the board of trustees of school lands of township eleven, range two, east, brought his action of assumpsit against Samuel M. and Adolph Heath, J. A. Dennis, and John Grissom on a joint note, dated January 25, 1839, for $1500, due January 1, 1841.
    The death of Grissom was suggested, and the suit abated as to him; the plaintiff dismissed as to Jas. A. Dennis, and verdict and judgment rendered in favor of the defendants, S. M. and A. Heath, on the 9th of October, 1846.
    The bill of exceptions taken on the trial shows, that after the plaintiff had read the note in evidence, the defendants read in evidence a deed of conveyance from Thomas R. Dennis, the plaintiff, to the defendant, S. M. Heath, dated the same day with the note, (25th of January 1839,) for a part of fraction section thirty-nine, township eleven, range two, east, laid off as therein described; the deed containing full covenants of warranty. The plaintiff then admitted, that the note sued on was one of four notes of $1500 each, given to secure the purchase-money expressed in the deed.
    That the defendant then offered to read to the jury, from the minutes of the court, signed by the judge, the entry of the judgment entitled, “Shirley & Whiteman against Dennis & White-man,” rendered the 80th of May, 1838, which was objected to by the plaintiff, on the ground that the process of the case in which said judgment had been rendered, was issued at the suit of Shirley and Whiteman against T. R. Dennis and John Patterson only, and executed on them alone, and that Whiteman was not defendant therein, or served with process ; and, as stated in the bill of exceptions, “ said grounds of objection were shown to be true in fact. ” Whereupon, the court ruled' out the entry of the judgment against Shirley and Whiteman.
    The defendants, thereupon, offered in evidence the final record in the case of Shirley and Whiteman against Dennis and Patterson. The plaintiff objected to the reading of said final record on the ground that it differed from the record of the proceedings and judgment, as entered on the original minutes, signed by the judge, in this, that it showed jüdgment against Dennis and Patterson ; whereas, the minutes showed a judgment against Dennis and Whiteman. “ The ground of said objection (the bill of exceptions states) were shown to be true in fact,” but the court overruled the objection, and allowed the final record to be read in evidence.
    The defendants then read in evidence an execution in favor of Shirley and Whiteman against Dennis and Patterson, issued August 5, 1838, for $361-50, with interest from May 30, 1838, and $20-12 for costs. The return on this execution shows a levy on negroes, and the taking of a forthcoming bond, with T> R. Dennis as surety, which was forfeited the fourth Monday of November, 1838.
    The defendants then read the forthcoming bond in evidence, which is not signed by Patterson but by Jas. A. Dennis alone, with Thomas R. Dennis as surety.
    The defendants then offered the execution on the bond, which after reciting that Shirley and Whiteman had recovered against J. A. Dennis the sum of $381-87, including damages and costs; that a levy had been made, and a forthcoming bond taken, with T. R. Dennis as surety, and that the same had been forfeited j commands the sheriff to make out of the property of said J. A. and T. R. Dennis the said sum of $381-87, with interest on $361-50 from the 30th of May, 1838.
    The plaintiff objected to the admission of this execution in evidence, but the objection was overruled, and the execution received.
    The defendants then offered in evidence the sheriff’s return of a levy and sale indorsed on said last mentioned execution. The execution was issued December 15, 1838, and was received by the sheriff January 10, 1839. The levy is dated March 7, 1838, and is upon “ a part of fractional section number thirty-nine, to be laid off, as is described in a title bond from Samuel Heath to Philanzo Payne.”
    The return of sale shows that, “due notice having been given according to law, the tract of land described as being a part of fractional section number thirty-nine, and other property levied on, was sold at public sale, and Joel Perkins bein'g the highest and fairest bidder for the land, became the purchaser at the price of $325.” This return is dated May 28, 1839.
    
      The plaintiff objected to the levy and return, but his objection was overruled.
    A deed from R. J. Bland, sheriff, to Joel Perkins in pursuance of such sale, dated May 11, 1839, was offered. Among several executions, it recites an execution on the judgment of Shirley and Whiteman against J. A. Dennis and T. R. Dennis for $381-87, with interest on $361-50 from May 30, 1838, issued December 15, 1838. It recites a levy upon “ a part of fractional section number thirty-nine, in Claiborne county, to be laid off as is described in a title bond from Adolph Heath to Philanzo Payne, recorded in the probate court clerk’s office of said county; ” and a sale thereof, in pursuance of legal notice, on the third Monday of April, A. D. 1839, to Joel Perkins for $325. '
    This deed was objected to, because the description of the land is uncertain, and because the description in the deed varies from the description in the levy.
    The objection was overruled, and the evidence of the deed admitted.
    The defendants then proved by P. J. Poor, the clerk of the probate court of Claiborne county, that there was no title bond from any person by the name of Heath to Philanzo Payne on record in his office, except the bond from Adolph Heath to said Payne.
    The defendants ‘then read in evidence the title bond from Adolph Heath to P. Payne, in which the land in question is described, as in the deed from Thomas R. Dennis' to Samuel M. Heath. And also proved by M. O. Hopkins, the deputy sheriff who made the levy, that he intended to levy on the land described in the title bond of Adolph Heath to Payne, recorded in the probate office, and that he took the description of the land from the record of said title bond of Adolph Heath to Payne, and in his levy inserted the name of Samuel Heath, instead of Adolph, by mistake.
    The testimony of Poor and Hopkins, and the title bond were objected to, but admitted.
    On cross-examination, Hopkins stated, that he advertised and sold the land as described in the levy, and that he made no. levy, seizure, or entry upon the land, other than by the indorsement on the execution; that when Perkins applied to him for the deed, the mistake of the name of the obligor in the bond referred to was discovered, and he corrected it in the deed at the request of Perkins. ■ He stated that he sold the land described in the title bond of Adolph Heath, but it was sold under the description contained in the levy.
    Perkins was examined, and testified that, prior to the sale of the land by Dennis to Heath, he had leased it of Dennis, and was at the time in possession, and after the sale he attorned to Adolph Heath, and gave him his note for the rent. Adolph was the father of Samuel, and witness gave his note to Adolph, not considering whether it had been bought by Samuel or Adolph. That after he bought the land at sheriff’s sale, Adolph gave him up his note, and he has since held the land as his own. He married a step-daughter of A. Heath.
    The plaintiff requested the court to charge the jury that, if Perkins was in possession of the land at the time of the sale to Heath, and recognised the validity of the sale, and acknowledged himself as tenant of either of the defendants, he could not set up an adverse title, without first surrendering the possession to the landlord, whom he so acknowledged. Which instruction the court refused to give.
    At the request of the defendants, the court charged the jury,
    1. That to constitute a legal eviction of the defendant, Heath, from the land sold him by Dennis, it is sufficient if Perkins is in possession, holding adversely to Heath, and if he has the right to such possession, so that Heath could not recover it by action of ejectment.
    
      2. That an agreement by Perkins to pay rent to Adolph Heath, does not constitute him a tenant of Samuel Heath, unless the agreement is made at the instance, by the'authority, and for the benefit of Samuel Heath.
    3. That if the jury believe that the land levied upon by the sheriff upon the execution in favor of Shirley and Whiteman, is the same land sold by said sheriff, and conveyed to Joel Perkins, and also the same land conveyed by T. R. Dennis to S. M. Heath, by his deed dated Jan. 25, 1839; and that the note sued on was given (as is admitted) for a part of .the purchase-money, and that there has been such an eviction of the defendant as explained in the above two charges; they ought to find for the defendant.
    4. That a tenant in action against him by his landlord, may show that his landlord’s interest has expired,’ or been extinguished, though he cannot dispute the original right of his landlord, under which he went into possession.
    5. That it is competent for the defendants to show, by parol evidence, the identity of the land levied on, with the land sold; and if the jury believe that the land levied on is the same conveyed in the sheriff’s deed, it is sufficient to explain the discrepancy in the name of the maker of the title bond referred to.
    Exception was taken to the charges given by the court, as well as to the refusal to give the charge asked for by the plaintiff.
    After the verdict was rendered, the plaintiff moved for a new trial upon all the points covered by his bill of exceptions. The motion was overruled, and the plaintiff appealed.
    
      Jas. H. Maury, for plaintiff in error,
    1. Contended, that the final record made up by the clerk, when it conflicted with or differed from the minutes of the court, must yield to the latter; there could be but one record, and that must be found in the minutes of the court. He cited How. & Hutch. 485, sec. 21, and the following sections.
    2. That the forthcoming bond was improperly admitted in evidence, because it did not correspond with the return of the sheriff, who returned that he had levied on the joint property of Dennis and Patterson, and had taken a bond fon its forthcoming, while Patterson was not a party to the bond. Iiow. &. Hutch. 653. The clerk, therefore, had no right to issue an execution on the bond; and the execution that issued varied from the bond, as described in the sheriff’s return.
    3. The levy on, and sale of, the land, as returned by the sheriff, were void for uncertainty. 13 Johns. R. 113.
    
      4. The sheriff’s deed was improperly admitted in evidence, because it sold land different in its description from that levied on. 10 Wheat. 454; 13 John. 113.
    5. The sale to Perkins, the son-in-law of Heath, of the defectively described land, for $325, for which Heath had agreed to pay six thousand dollars, savors strongly of fraud.
    
      H. T. Ellett, for defendants in error.
    I. The objection to the admissibility of the final record cannot prevails; because,
    1st. The bill of exceptions says, that “ the grounds of objection to the record of the minutes of the court, were shown to be true in fact,” but the evidence offered on either side is not embodied in the bill of exceptions. This court cannot judge of the question without seeing the proof. It must be shown here that the grounds of exception are true in fact.
    2d. But this final record imports absolute verity, and cannot be impeached collaterally. It is the final record alone that can be relied on for uniformity and perpetuity, being chiefly made up from loose papers filed in the court. The statute (H. & H. 485, sec. 21) does not make the minutes the evidence of the judgment, but they are to be “ preserved among the records,” as part of the materials to be used in making a final record.
    It is expressly decided in Lehr v. Hall, 5 How. 58, that “ the minutes are not evidence to show a judgment. The whole proceeding must be produced, or the entire record from the book of records of final judgments.”
    But had the point made by the plaintiff below been sustained, it would not have altered the case; Thomas R. Dennis was not a party to the original judgment, but became the surety on the forthcoming bond, which was forfeited afterwards. The judgment on this bond remains in full force, and is the judgment on which we altogether rely.
    2. The admission of the fieri facias on the bond was objected to, because it recites an original judgment against J. A. Dennis, without mentioning Patterson.
    This is no objection. The recital is true as far as it goes. There is no repugnancy or variance between it and the original judgment. Patterson had been released by the forthcoming bond, and there is enough recited to sustain the bond and execution. In pleading, it is only required to set forth so much of an instrument as is sufficient to maintain the action. A familiar illustration is furnished by the common case of a suit against one of several makers of a joint and several note. It is not necessary to mention the parties not sued.
    3. The admission of the sheriff’s return of the levy and sale, indorsed on said execution, is objected to,
    1st. Because it bears an erroneous date, to wit, March 7, 183S, instead of 1839.
    An obvious mistake in the date of an officer’s return, will not defeat the levy. The date will be rejected. 13 Mass. 534.
    2d. Because the description of the land is so uncertain, as to render the levy void.
    This is upon the principle settled in relation to the construction of deeds, that there must be such certainty of description as to enable the thing granted to be identified.
    It is an equally well settled rule, that every deed is to be so construed, if possible, that the intent of the parties may prevail, and not be defeated. 4 Mass. 205; Blake v. Doherty, 4 Peters, Con. R. 683; 2 Black. Com. 380.
    The objection must be considered on the face of the levy alone, without any reference to questions raised on evidence subsequently introduced by the defendants, and the inquiry is, whether this levy is void on its face for uncertainty 1
    
    It is not void, for “id cerium est, quod certum reddipotest and by the production of the title bond, all uncertainty may be removed; or, if necessary, parol evidence may always be given to show the location or limits of land, where reference is made to other grants, or other facts requiring explanation. 6 Pick. 460; 13 lb. 261.
    But it may be said the bond is not sufficiently described. No further description of the bond is necessary. It does not appear that there is more than one such bond, and if it were shown' that there are two or more bonds, answering the general description given, then a plain case of a latent ambiguity would occur, aad parol evidence be admissible to show which bond was intended to be referred to. 1 Greenl. Ev. 431, § 297; 3 Stark. 1000; 1 Phil. Ev. 531, 532.
    In 4 Mass. 205, the court say, “if a man convey his house in D. which was formerly R. C.’s, when it was not R. C.’s, but T. C.’s, the house in D. will pass, if the grantor had but one house in D.” Yet here was no description of the house, which was left to be ascertained by parol evidence.
    
      Blake v. Doherty, 5 Wheat. 359, (4 Con. R. 684,) is a strong case in point. The call in the grant was “ a hickory,” without further identification. The court (per Marshall, C. J.) said, “If, in the nature of things, it be impossible to find this hickory, all will admit the grant must be void. But if it is not impossible, if we can imagine testimony which will show any particular hickory to be that which is called for in the grant, then it is not absolutely void for'uncertainty, whatever difficulty may attend its location.”
    4. The sheriff’s deed to Joel Perkins was objected to by the plaintiff below, on the ground, first, that the description of the land is uncertain; and secondly, because the description in the deed is variant from the description in the levy.
    The objection of uncertainty has already been considered. That of variance of description is equally untenable. The sheriff’s deed states distinctly that the land sold is the same land mentioned in the levy, though the description is different. The deed could not be rejected for this discrepancy, for possibly the defendants might reconcile the apparent variance by the production of other testimony.
    Where land has been attached under one description, and levied on under another, parol evidence is admissible to show that both descriptions referred to the same land. 3 Hammond, 272 ; 5 Pick. 170.
    5. The defendants produced the title bond from Adolph Heath to Payne, and proved by Poor, the probate clerk, that there was no title bond from Samuel Heath to Payne on record in his office; and by Hopkins, the deputy sheriff, who made the levy, that he intended to levy on the land described in the title bond of Adolph Heath to Payne, recorded in the probate office, and that he took the description of the land from the record of said title bond of Adolph Heath to Payne, and in his levy inserted the name of Samuel Heath instead of Adolph, by mistake.”
    We insist, that this evidence was competent to explain the mistake in the levy, and show the identity of the land levied on with the land sold.
    A latent ambiguity is one not apparent on the face of the instrument, but shown by extrinsic proof; and the rule is general, that such an ambiguity may be explained by parol evidence. Cheney's Case, 5 Co. 68; Norris’s Peake’s Ev. 179, et seq.; Roscoe’s Ev. 12; 1 Phil. Ev. 431-436; Cow. & Hill’s Notes, Pt. 2, 1361; 1 Greenl. Ev. 431, § 297; 3 Starkie, 1000.
    In this case there is clearly a latent ambiguity in the levy. The deed is right, reciting a title bond from Adolph Heath to Payne. But the levy refers to a title bond from Samuel Heath. The sheriff’s return of sale, and his deed to Perkins, show that both descriptions refer to the same land. On inquiry, it is found that there is no bond from Samuel Heath to Payne.
    Here is an ambiguity, latent, created by the extrinsic proof, and susceptible of explanation in the same manner. It is explained by the deputy sheriff, who testifies that he took the levy from the record of the title bond of Adolph Heath, and inserted Samuel by mistake.
    In illustration of the principle of law relied on, and to show its application to this case, the following authorities are cited, and considered in point.
    
      Jackson v. Stanley, 10 Johns. 133. A patent was issued to David Hungerford, and parol evidence was admitted to show that Daniel H. was the person intended. (By Kent.)
    
      Powell v. Biddle, 2 Dallas, 70. Parol evidence was admitted to show that a legacy given to Samuel P. was intended for William P., though there were other persons of both names.
    
      Jones v. Newman, 1 Black. 60. Devise to John Cluer, there being father and son of that name; parol evidence admitted to show that the son was intended.
    
      
      Doe v. Danvers, 7 East, 299. Devise to Mary, whose name was Elizabeth; parol evidence admitted to explain the mistake.
    12 Pick. 557. Parol evidence admitted to prove a note to be the one intended to be described in a mortgage, though of different account.
    
      White v. Eagan, 1 Bay’s R. 247. Parol evidence admitted to show that North was mentioned for South, and South for North.
    
      Middleton v. Perry, 2 Bay, 539. Parol evidence was admitted to show that the land lies on Catawba, instead of Broad River, as mentioned in the grant.
    A., seized of a lot on Fourth street, in the occupation of R. H., and having no lot on Third street, devised his “lot in Third street in the occupation of R. H.” Parol evidence admitted to explain the mistake. Lessee of Allen v. Lyons, 2 Wash. C. C. R. 475.
    
      Commercial Bank v. Clapier et al., 3 Rawle, 335, is directly in point. Parol evidence was admitted to show that there was no such note in existence as the one described in the deed of assignment, but that another note, of a different description, was intended to be provided for.
    In 4 Wend. 462 and 588, it is decided, that a variance between the sheriff’s return and his deed, may be explained by parol, and that the return may be rejected. See also 3 Hammond, 272; Cow. & Hill’s Notes to Phil. Ev. Pt. 2, 1377, note 942..
    6. This is a question of the failure of the consideration for which the notes were given. The deed for the land from Dennis to Samuel M. Heath, contains full covenants of warranty, and an actual eviction is shown. The instructions given in the court below, are referred to, as a correct exposition of the law on this subject. Indeed Samuel Heath, the purchaser of the land, never has been in possession.
    It is important to a correct decision of the question, that the situation of Perkins, the purchaser at the sheriff’s sale, should be considered. Has he acquired a title which he can successfully assert at law,. or in equity, against Samuel Heath 1 He was in possession as tenant of Dennis. When Dennis sold to Heath, he became tenant of Heath. As such, he could not buy the outstanding title of a third person, and set it up against his landlord, but he had a right to buy up the title of his landlord, at sheriff’s sale, and thus show that his landlord’s title had expired, or been extinguished. This is not disputing the right under which he went into possession. 2 Leigh, N. P. 927.
    We insist, then, that Perkins acquired a good legal title against Heath, because,
    First, it would be competent for him, according to the argument already advanced, to prove by parol the mistake in the levy, and
    Secondly, because a purchaser at sheriff’s sale, is not affected by irregularities in the levy and sale.
    In Jackson v. Sternberg, 1 Johns. Cases, 155, it is decided, that “the sheriff’s return is not essential to the title of the purchaser. The title was not created by, nor dependent on, the the return, but was derived from the sale made by the sheriff by virtue of his writ. It was sufficient for the purchaser that the sheriff had competent authority, and sold and executed a deed to him. The sale and the sheriff’s deed are sufficient evidence of the title, and if the purchaser can show that the sheriff had authority to sell, it is enough, and he need not look further.” See also Minor v. City of Natchez, 4 S. & M. 622 ; 8 Mass. 335.
    But it is sufficient if Perkins acquired an equitable title, to protect him against the claim of Heath. The facts disclosed in the record make a clear case for equitable interposition, and chancery, on a bill filed by Perkins, would correct the mistake in the levy, and enjoin any attempt to disturb his possession. 1 Greenl. Ev. 430, § 296 a, (3d edit.); 1 Story, Eq. Jur. 168, § 152, et seq.
    
   Mr. Justice Clayton

delivered the opinion of the court.

This case grows out of the same transaction which gave rise to Heath against Newman. The principal difference between them is, that in this case there is an alleged eviction, or something which it is contended is its equivalent. The act for which that effect is claimed, is that of Joel Perkins, who states in his testimony that he was the tenant of Dennis at the time he sold to Samuel Heath, that he attorned to Adolph Heath, and gave his note to him for the rent. That Adolph was the father of Samuel Heath; that he knew the land had been bought by one of the Heath family, and gave his note without knowing whether it was the father or son who had purchased. That the witness had bought the land at the sheriff’s sale, and that after his purchase, Aldolph Heath gave up the note to him, and he has since held the land as his own. He had married the daughter of Adolph Heath, and bought the land for ¡$325.

In our view this falls short of eviction in law. There has been no action of ejectment, no judgment, no turning out of possession, nothing but a voluntary surrender of possession, and yielding of the right without an effort to maintain it.

In general, a judgment in ejectment, unless followed by actual eviction, does not constitute a breach of the covenant of warranty. The eviction, or the turning out of possession, is caused by entry under the judgment, either with or without execution. Ferris v. Harshea, Mar. & Yerg R. 55. The judgment does not destroy the seisin of the defendant. Sedgwick v. Hollenback, 7 Johns. R. 376.

If at the time of the sale there be a paramount title, and an adverse possession under it, the holding out of the purchaser is equivalent to eviction. Duvall v. Craig, 2 Wheat. 45; Randolph v. Meeks, Mar. & Yerg. 62. But this case is not within this principle.

This record shows that Dennis sold to Heath, and put him in possession under a deed with covenants of general warranty, and that Heath voluntarily surrendered that possession to another, likewise claiming title under Dennis, by a subsequent purchase under a prior incumbrance. To hold that this satisfied the requirements of the law, would, in this and in many other instances, cause the trial of titles to land in an action of debt or assumpsit. We are not disposed thus to change the established rules of law.

Another question was argued, and a decision pressed for. In the court below, there is a difference between the judgment as entered upon the minutes of the court, and as contained in the final record made up and entered by the clerk. Which of these is to prevail 1

The minutes of the court, openly read each day, corrected and signed by the court, constitute in law the true record. These are acts of the court. The other is a mere copy of the originals, for their greater security and better preservation. It is the act of the clerk. H. & H. 485, sec. 22. In the event of a difference, the original must be preferred.

The charge of the court below, being opposed to this view of the law, the judgment must be reversed, a new trial granted, and the cause remanded for farther proceedings in accordance with this opinion.

Judgment reversed.  