
    George Sawyer vs. Jacob Leard.
    Id trespass quare clausum fregit, the testimony of the sheriff that he did Dot levy on the land in dispute, will not be received to contradict the terms of his own deed and the entry of his levy.
    BEFORE O’NEALL, J., AT LEXINGTON, MAY, EXTRA TERM, 1855.
    The report of his Honor, the presiding Judge, is as follows:'
    “ This was an action of trespass, quare elausum fregit, in which the title of the plaintiff to the land as opposed to that of one Samuel Crafts, and the right of the defendant to cut the timber on the land of the said Samuel Crafts, became necessary to be investigated.
    “ The land in dispute was once the property of John D. A. Murphy. He took the benefit of the bankrupt law of the United States, and M. H. Pooser was appointed his assignee on the 11th March, 1843.
    
      “ Pooser, in 1844, conveyed a large tract of land, embracing within its boundaries two hundred acres, in dispute, to O. B. Hilliard, and Hilliard conveyed, on the 1st August, 1844, the same land to C. B. Northrop. Neither of these deeds was recorded until September, 1851.
    “ In the meantime, Pooser, without styling himself assignee, on the 15th September, 1848, sold and conveyed the two hundred acres of land in dispute to Michael Sharpe, and the deed was recorded 23d November, 1850. On the 15th February, 1851, Michael Sharpe sold and conveyed the same to Samuel Crafts, and on the 27th March, 1851, that deed was recorded. Both Sharpe and Crafts had actual possession of the land in dispute under each of their deeds. In the last deed from Sharpe to Crafts, the right to cut the timber on the land was reserved to M. H. Pooser.
    “ It became necessary to sell the land and all the property of J. D. A. Murphy, which had been conveyed to Hilliard and Northrop, and which had remained in the possession of the assignee, Pooser. Accordingly, .on the first Monday in May, 1852, as the agent of Northrop, and under the levy of various executions, one of which, to wit: Robinson and Caldwell’s, was older than the deed to Sharpe, Isaac Yansant, Esq., Sheriff of Lexington, sold a tract of land containing five thousand two hundred acres, and on the 18th of the same month, Northrop and himself conveyed it to Sawyer, the plaintiff, who is in actual possession of a part of the land conveyed to him, but between two and three miles from the land in dispute, of which Crafts was in possession before the sale, at the time it took place, and when Leard cut the timber, the cause of this action. The description in the deed to Sawyer, and in the Sheriff’s written levy on the execution covers the land in dispute. The advertisement clearly shews that it was not intended to sell the land in dispute. Tbe timber privilege on the land was advertised and sold to Northrop before the land to Sawyer was sold. Northrop transferred his purchase of the timber privilege to Leard, and under this right he cut the timber, for which this action was brought, in a clearing made by Crafts, and of which he (Crafts) had actual possession.
    “The Sheriff, Yansant, was offered, to prove that he did not levy on the land in dispute. I thought this was competent. It was not to alter, contradict or vary his deed. It was to shew he had no authority to sell the land in dispute. He proved most distinctly and clearly that he never levied on the land in dispute.
    
    “ I was of opinion, and so told the jury, that the deeds of Hilliard and Northrop, not recorded within six months, and not recorded until after the deeds of Sharpe and Crafts were recorded, could not prevail over ,the deeds to Sharpe and Crafts, which were recorded. So, too, I thought the fact that Pooser in his > deed to Sharpe did not recite his character of assignee could not help the plaintiff.
    “ The fact whether Yansant was right in stating that he did not levy on the land was left to the jury. They found for the defendant.”
    The plaintiff appealed, and now moved this Court for a new trial on the grounds :
    1. Because his Honor, the presiding Judge, erred in admitting the testimony of Isaac Yansant, Sheriff, to contradict the record of the levy made by him as Sheriff on the tract of land on which the trespass was committed, and the deed of conveyance made by him and C. B. Northrop to the plaintiff.
    2. Because his Honor, the presiding Judge, erred in charging the jury that the conveyance of Isaac Yansant, Sheriff, and 0. B. Northrop, to the plaintiff, does not convey the timber sold by the former at Sheriff’s sale, and purchased by the said C. B. Northrop.
    3. Because his Honor erred in holding that the deed of M. H. Pooser to Michael Sharpe, took precedence of the deed made by him as assignee of J. D. A. Murphy in bankruptcy, to O. B. Hilliard, although the latter deed was executed by him in the execution of his trust more than four years before the former.
    
      Boozer, Bair, for appellant.
    
      Besaussure, contra.
   The opinion of the Court was delivered by

Glovee, J.

The Circuit Judge admitted the Sheriff to prove that he did not levy on the land in dispute, and the first ground of appeal submits that this contradicted the levy made by him as Sheriff, and also the deed executed by him and Northrop to the plaintiff. It is conceded that both the entry of the levy by the Sheriff and his deed embrace the land in dispute.

We would not, without qualification, declare that a Sheriff shall not be permitted to correct mistakes in his entry of levy, even in his Sale Book. The Act of 1839, (11 Stat. 26, sec. 6,) directs him to make an entry of all his levies, intending to preserve a permanent memorial of them, not only for his direction, but for the benefit of all parties interested. Before he has conveyed the property sold to a purchaser, he may amend his entry, and make it conform to the truth; but it may prove dangerous in practice to permit such amendment after he has executed a deed conveying the property, or to permit parol evidence to explain it, and thereby contradict his deed.

T-he Sheriff proved that he never levied upon the land in dispute, and if this contradicted, altered or added to his deed, it was inadmissible.

In ascertaining the intention of a party, which must control in the construction of his deed, we must collect it from the language of the deed itself, and evidence should not be admitted to explain, unless by the terms of the deed such intention cannot be dispovered without resort to other evidence — or where an ambiguity has been raised by parol, it may be removed by parol. Does the evidence of the Sheriff, received in this case, contradict or vary his deed ? The levy and deed embrace five thousand two hundred acres, and he was pertíiitted to prove that he never levied on the land in dispute, which constituted two hundred acres of the land described in the plaintiff’s deed. This is a variance, and manifestly contradicts a deed by which the quantity is clearly set out, and without any such ambiguity as requires explanation. If the Sheriff’s deed had embraced all the land which had been conveyed to Hilliard and Northrop, it would be competent to show by parol how much had been conveyed; but it would not be competent to shew that a part and not the whole was intended. (Barkley vs. Barkley, 3 McC. 269.)

In Locke vs. Whiting, (10 Pick. 279,) it was held, that where a mortgage deed purported to convey the whole estate, parol evidence is not admissible to prove that the deed was intended by all the parties to convey a moiety only, and that the whole was included by a mistake of the scrivener. •

The law requires that conveyances of real estate shall be by deed, and this not only furnishes the evidence of the agreement between the parties, but, when recorded, the publie is advertised and learns the intention of the parties from an examination of their deeds in the Registry.

It may be shewn that the Sheriff had no execution justifying his levy and sale, and, therefore) no authority to sell; as this contradicts only a recital in his deed, which is not even prima facie evidence of his official authority. Here the evidence is offered to shew that he sold less than his deed specifically conveys, and if admissible, it may be competent to shew that his levy embraced no land described in his deed. Where there is fraud or mistake, and the facts authorize it, a deed may be declared void or set aside pro tanto; but the fact of such mistake should not be enquired into in a collateral way, and thereby contradict the express terms of a deed.

Should a Sheriff sell or convey land not subject to the lien of a judgment, the title of the owner is not necessarily defeated by such sale, nor is he without a remedy. In this case, the property is described without any ambiguity, and the intention of the Sheriff is manifest, and should parol proof be admitted which contradicts his deed, without any allegation of fraud, it would violate a safe and well-established principle of evidence.

It is not necessary to notice the other grounds taken in the appeal or the argument.

Motion granted.

Wardlaw, Withers, and MüNRO, JJ., concurred.

O’Neall and Whitner, JJ., dissented.

Motion granted.  