
    Lessee of M. Walsh v. Ringer.
    Defendant arrested upon execution fora fine, may surrender land in discharge of his body. >
    Land surrendered by defendant in discharge of his body, in execution for a fine, may be sold without valuation.
    Description in a deed, seventy acres in southwest corner, good, and includes the land in an equal square.
    This was an ejectment, adjourned from the Supreme Court of Harrison county, upon a case agreed.
    Both parties deduced title under James G-. Ward. The history of the claim of each is as follows:
    James G-. Ward owned seventy acres of land situate on the west side of the southwest quarter of section 4, township 12, range 5, beginning at the southwest corner of the section, and lying in an oblong square, extending north one hundred and sixty perches, and east seventy perches, from the southwest corner.
    The title of the lessor of the plaintiff was founded upon a sheriff’s sale. J. G-. Ward was convicted of an assault *and battery, at the November term, 1820, of the common pleas of Harrison county. Upon this conviction, an execution issued against his goods, chattels, lands, tenements, and body, for the fine and costs, amounting to about thirty dollars. This execution was dated May 23,1821, and upon it the sheriff took Ward in custody. To obtain the discharge of his body, Ward surrendered to the sheriff land, described in the return as follows: “ Seventy acres of land, it being and lying in the southwest corner of the southwest quarter of section 14, township 12, range 5, of the lands sold at Steubenvilleand it was returned not sold for want of bidders. A vendi. was issued to sell the land, and after a succession of writs, it was sold on a pluTies vendi., March 8, 1824, without valuation to the lessor of the plaintiff, for thirty-one dollars twenty-five cents. The sale was approved by the court, and a conveyance made by the sheriff to the lessors of the plaintiff, dated April 13, 1824, in which deed the description of the land conforms exactly to the levy.
    The defendant claimed under a deed from James Gr. Ward, for seventy acres of land — described by metes and bounds — exactly including the land owned by Ward — dated August 25,1821,. which was after the surrender to the sheriff of the same land.
    Beebe, for the defendant, made thrée points in objection to the title of the plaintiff’s lessor:
    1. The body of Ward having been taken in execution, land could not be given up in discharge of it.
    2. The sheriff could not sell the land without valuation.
    3. The land is not well described in the levy and deed, so as to be sufficiently certain to pass title.
    1. He contended that section 36 of the act for the punishment of certain offenses, passed February 11, 1815, under which the execution issued in this case, did not authorize the sheriff to take property in discharge of the body, if the person was once arrested. It gave authority to levy on lands or chattels, and provided a mode of sale where such levy was made. The sale was to be according to the provisions of the act regulating judgments and executions, *then in force, which was the act of 1810, that was repealed before the sale.
    This act is only adopted to authorize a sale where levy is made, not where property is given up in discharge of the body. No provision is made for such a case; and it is not a correct argument to maintain, that as the act of 1810, regulating judgments and executions, authorized property to be surrendered in discharge of the body, and directed it to be sold as if levied upon, that this section 36 adopts it for the same purpose, when, in terms, it confines its adoption to other purposes — that is, to the completion of a sale where a levy was made.
    The judgment and execution law of 1810, subsequently to its adoption, by section 36 of the act for the punishment of certain offenses, of 1815, was repealed. It would be unreasonable and dangerous to hold, that notwithstanding this subsequent repeal, it was partially in force, by virtue of a previous adoption in another statute.
    2. The land ought to have been appraised.
    The judgment and execution law of 1820, section 29, provides that lands shall be sold without valuation for the discharge of debts or taxes due to the state. This execution was for neither debt nor tax. Debts arise from contracts, not crimes. The section means debts as they existed before judgment. Why else is provision made specially,' in case of fines, for executing property ? For debts, property could always be executed.
    3. The land is not described with sufficient certainty.
    The description in a grant must be sufficient and distinct in itself, so that there can be no question about identity; or the description must be such, that by reference to facts stated in the deed, the land may be identified.
    The description here is seventy acres in the southwest corner. How is it to be laid off? Should it be a square or a triangle ? Can it be made to include seventy acres off the west side? The cases upon this subject proceed upon the ground, that where, in the description of the deed, circumstances are mentioned, you may investigate such circumstances to identify the land conveyed. But here no circumstance is mentioned. The description is of a single insulated fact. “ Lying and being in the southwest corner.”
    *G-oodenow, for plaintiff,
    contended that the law authorized a levy upon land for fines, and the execution issued against the lands as well as the body. Admit it were irregular in the sheriff to seize the body, and discharge it upon a surrender of lands, yet, as the execution was against lands, the purchaser at the sheriff’s sale was not bound to inquire into every step taken by the sheriff, on such an execution. Besides, where a defendant voluntarily-surrendered his real estate, and it was sold with his own consent, and by his agreement, he could not be heard afterward to object against the purchaser’s title.
    The repeal of the judgment and execution law of 1810, can not affect the case. It is referred to and adopted in the law for the punishment of offenses, as directory to a ministerial officer; and its directory provisions exist by virtue of the act that adopts them, whether in force for other purposes or not.
    The third objection interposed by the defendant to our recovery, is a want of description of the land.
    The court in this case by the agreement of the parties, are to perform the offices both of judge and jury ; hence they not only decide what construction the grant or deed of the sheriff is to receive, but also what, as a matter of fact, was intended by the parties as to all questions of location, there being nothing in the description contained in the deed destructive of itself. “Uncertainty as to the application,- abstracted from the question of law, must unavoidably exist as to all grants; for it will be readily comprehended, that it is not possible to make a grant of any parcel of land, by metes and bounds, defined with perfect accuracy, which a stranger, totally unacquainted with the objects of the grant, but from its import, and unacquainted with the country contiguous to it, can locate without acquiring a certain portion of knowledge for that purpose extrinsic the grant.” Frier v. Jackson, in Error, 8 Johns. 495.
    Now what is the description here? Seventy acres in the southwest corner of a well known tract of land. What was intended? Ward owned seventy acres only in that quarter, and ail lying in a body. He describes the seventy acres as lying in *the southwest corner. Had he described them as the seventy acres which he possessed in that quarter, there could have been no doubt. Can there be any doubt now ? Ward owned and possessed seventy acres, lying on the west side of the quarter, extending from the southwest to the northwest corner, and thus embracing and lying in both corners : instead of so describing it, he describes it as seventy acres lying in the southwest corner only. Can there be any mistake, any uncertainty, any ambiguity?
    In Blaque v. Gold, Cro. Car. 447, 473, there was a devise of a house, called the corner house in Andover in the tenure of B. and H., whereas it was in the tenure of B. and H., the devisor having a house thereto near adjoining in the tenure of H., and it was held to be the corner house in the tenure of B. and N. for that the devise sufficiently ascertained the thing, by the words “ corner house" and the addition of tenure was surplusage.
    This doctrine is considered by the court in Hew York, as equally applicable to deeds as to devises; and is cited by Spencer, J., in delivering the opinion of the court, in the case of Jackson v. Clark, 7 Johns. 217, to illustrate this rule, therein relied on by the court, as having “ been settled with great wisdom and accuracy.” “If there are certain particulars once sufficiently ascertained, which designate the thing intended tó be granted, the addition of a circumstance, false or mistaken, will not frustrate the grant.” Certainly, then, if a tract of land intended to be granted, is described by certain particulars, sufficiently ascertained, the description is none the worse, because there is no false or mistaken circumstance contained in the grant: and in the instance before us, the construction of the sheriff’s deed ought to lie as strongly against Ward, as if he had made the grant himself, for he voluntarily surrendered, and the sheriff took his description, and it lies not in his mouth to say he committed a fraud upon the officer, nor does it lie in the mouth of his grantee to hold the same language to the purchaser at the sheriff’s sale, for the return upon this execution, made to the court and filed with the clerk, on July 30, 1821, long before the execution of the deed to the defendant was notice “ to all the world.”
    *If a man convey all the land in his possession in the township of W., what he actually possesses in that township will pass; 5 East, 51; 8 East, 91; 14 Johns. 1, and if he had delivered to the sheriff just such a description upon a ca. sa. for the purpose of discharging himself from the iron grasp of the law, the sheriff’s sale by that description would be sufficient; -though an ordinary levy, so described by the sheriff, might admit a different construction. If a deed correctly describe land by its occupiers, and quantities, though it describe it as being in a parish in which it is not, the land will pass by the deed. Lambre v. Redstone and wife, 5 Taunt. 207.
    In the case of Jackson v. Gardner, 8 Johns. 397, a question arose as to the location of a tract of land mentioned in a lease which had been destroyed, in which a witness said the land was described as “two hundred acres in the southeast corner” of a certain lot. It appears clearly, by the opinion of the court, that had Hamilton, the lessor, possessed only the two hundred acres in the “southeast corner,” there would have been no doubt or difficulty about the location. In the case now before the court, we prove that, in the quarter out of which we claim the seventy acres, Ward owned that quantity, and that only, and in the southwest corner. In the case I have cited above, from New York, the court say, the plaintiff ought now to be confined to such location of the two hundred acres, in and adjoining the southeast corner of the lot, as can be “ made consistently with the defendant’s right,” the lessee himself having been instrumental in the destruction of the lease, which “shrouded the question of location in absolute uncertainty;” and for that reason the court say, “ every difficulty and presumption ought to be toned against him.”
   By the Court :

We entertain no doubt but that upon an execution, in a case like that against Ward, the defendant, if arrested, may surrender land to the sheriff in discharge of his body. This surrender the sheriff may accept, and when accepted the effect of the proceeding is the same as that of a levy. It is a legal appropriation of the land to satisfy the execution. *No subsequent disposition of it, by the defendant, can pass a title so as to defeat and divest the interest attached by the execution and the proceeding on it.

We think, too, that judgments for pecuniary fines are debts due the state, within the meaning of the law authorizing, in such cases, the sale of lands without valuation, and that lands, surrendered to obtain a discharge of the body seized in execution, are to be sold in the same manner as if levied upon by the sheriff in the first instance.

The description of the land is in general terms. Seventy acres, being and lying in the southwest corner. The defendant contends that this description is so vague and uncertain as, for that reason, to be void and inoperative. On the other hand, the plaintiff contends it is a good description to convey seventy acres of land, commencing in the southwest corner, and extending on the west line to the northwest corner in an oblong square. Neither of these constructions can be maintained.

The general position of the land conveyed is given with sufficient certainty. It is in the southwest corner. According to the rules of decision, both in this state and in Kentucky, that corner is a base point from which two sides of the land conveyed shall extend an equal distance, so as to include, by parallel lines, the quantity conveyed. From this point the section lines extend, north and east, so as to fix the boundaiy west and south; the east and north boundaries only are to be established by construction, and the rule referred to gives them with sufficient certainty.

It is argued for the lessor of the plaintiff, that the court, performing in this case the functions of a jury, are to decide not only the construction of the deed but the intention of the parties. Where there is no ambiguity in the description the construction of the terms employed is matter of law, independent of the intention of the parties. And here, upon legal principles, there is no ambiguity. Had the description been “ seventy acres on the west side of the quarter,” the whole west line must have been considered the base line of the tract, and the quantity laid out in an oblong square. It would have been a violation of the plain legal sense of the terms used, to lay out the land in a square, *at either corner, upon parol proof that such was the intention of the parties. So, in this case, no proof can justify us in giving an interpretation, by which terms, that locate the land in a square at the southwest corner, shall be made to locate it on the west side. The plaintiff must have judgment for so much of the land in dispute, as may be included by a line, north from the southwest corner, such a distance that the parallel lines of a square with four equal sides will include seventy acres. 
      Note by the Editor. — See, as to description in sheriff’s deed, iii. 272. (“ The Eive Points.”) Parol proofs may he introduced to identify the description in the levy with that in the deed, iii. 272; v. 522; vi. 536; xvi. 16, and cases cited.
     