
    Brigance vs. Erwin’s lessee.
    
    Levy. Description of land levied upon, A levy of an execution issued from the circuit court of (he United States, is void for uncertainty of description of the land levied up* on if made in these words: •*Levied, 20th August, 1825, on nineteen hundred and fifty acres of land in Henderson county, part of tract of 2500 acres located by Daniel Gilchrist.”
    This was an action of ejectment, tried in the circuit court of Henderson county, at its July term, 1851, Read, Judge, presiding. There was judgment for the plaintiff, aud the defendant appealed in error.
    Bullock & Scurlock, for plaintiff in error,
    cited 3 Yerg. 33S; 1 Hum. 395; 4 Hum. 433; 3 Hum. 629; 7 Hum. 181; 10 Hum. 44.
    M. &. H. Beown, for defendant in error.
    We understand the ground taken by plaintiff in error is that the levy and sale are void for uncertainty as to description of the land. The levy is as follows: “ Levied 20th August, 1825, on nineteen hundred and fifty acres of land in Henderson county, part of a tract of 2500 acres located by Daniel Gilchrist.”
    This presents as high a degree of certainty as has ever been required by any authority on the subject. The rule laid down in the case of Pearce vs. Owen, 2 Hay. 415, is, that “ uncertainty in a deed will invalidate it; but it must be such uncertainty as makes it impossible to tell what estate is granted.”
    In the case of Vance vs. McNairy, 3 Yerg. 176, it is laid down that it is enough if the levy distinguish it from other tracts.
    In the case of Parker Sf Collier vs. Swan, 1 Hum. 80, the description is “seventy acres of land, belonging to John Doak, lying on the waters of Stone’s River.” The court say, “All that is necessary in the levy is some general description that will, by reasonable intendment, connect it with the sale and deed, so that a tract of land different from the one levied on may not be sold and conveyed. This we think is given in the levy before us.” In the case of Brown vs. Dickson, 2 .Hum. 397, this court re-affirms the doctrine of the above case of Parker Sf Collier vs. Swan, and say, “ the levy shows to whom the land belonged, the quantity of acres, and the location, to wit: the waters of the west fork of Stone’s River. Now it is impossible that there can be any uncertainty in this levy, unless by accident there should be two tracts of land owned by the same person, containing the same precise number of acres and having the same location ; a thing not to be supposed.”
    
    Apply these authorities to this case and they fully sustain this levy and sale. Here all that was required in the case of Parker & Collier vs. Swan appears with an additional description far more definite and accurate than anything contained in that case. It is referred to as the tract located by Daniel Gil-chist. By reference to the entry, plat, survey, certificate, &c., of record on which the grant is founded the name of the locator will appear. The locator by law is entitled to a portion of the land, and by the act of 1829, ch. 84, (2 Hay.& Cobb’s 113,) may have his interest set apart to him as was actually done in this case, leaving after Gilchrist’s part was taken off, the amount now in controversy, to wit, 1950 acres. It will be observed by the court that a reference to a tract of land by re-fering to the amount and the name of the location, is a very common mode of description in Tennessee, and we think has always been deemed sufficient certainty. If it be said that Gilchrist might have located within the county of Henderson two tracts precisely of the same size, we reply in the language of the court in the case of Brown vs. Dickson, above cited, that this is “ a thing not to be supposed.”
    The cases of Huddleston vs. Garrett, 3 Hum. 629, and of 'Iaylor's lessee vs. Gozart, 4 Hum. 433, do not conflict with the case above referred to. The first one is a levy on all the unsold land of the heirs of Mclver without any reference to identify the tracts or show what was sold or unsold. And the last named case was perhaps still more vague and uncertain.
   Totten-, J.,

delivered the opinion of the court.

The action is ejectment in the circuit court of Henderson for 1950 acres ofland. At July term, 1851, of said court, there was a trial, which resulted in a judgment for the plaintiff, and the defendant has appealed in error to this court.

James Erwin, the plaintiff’s lessor, claims title under a marshal’s sale, made November 12, 1825, in virtue of an execution issued by the circuit court of the United States at Nashville, on a judgment in that court in favor of the Bank of Georgia vs. Andrew Erwin. The marshal’s deed and the record of that proceeding, were produced at that trial. The levy endorsed on the execution is in these words: “ Levied, 20th August, 1825, on nineteen hundred and fifty acres of land, in Henderson county, part of a tract of 2500 acres, located by Daniel Gilchrist.” The description contained in the marshal’s deed is, in the words of the levy, and no more. And now, the only question is, whether an execution sale made in virtue of such a levy, is valid or not ?

The rule to be deduced from the cases on this subject, seems to be, that the levy must contain such general description as will, by reasonable intendment, connect it with the sale and deed, so that purchasers may know the land to be sold and form some estimate of its value, and that the sheriff or marshal making the sale, or his successor, looking to the levy, may know what land to convey, and not sell one tract and convey another. Parker vs. Swan, 1 Hum. R. 81; Gibbs vs. Thompson, 7 Hum. R. 180.

The notice, founded on the levy, is supposed to contain the same description, and purchasers are thereby directed to the land intended to be sold. The deed, also founded on the levy, contains a more full and special description, consistent, however, with that contained in the levy, and it must appear from the levy and the deed, that the land named in each is the same. For parol evidence, except in the case of latent ambiguity, is, in general, inadmissible to show the identity of the land. Thus, in Taylor’s Lessee vs. Cozart, 4 Hum. R. 434, it was held that a notice, being a matter in pais, was inadmis • sable to aid a defective levy.

The levy may contain, in itself, the degree of certainty required, and that is the better practice; but if it refer to a deed or other title paper of record, to which convenient access may be had, it thereby incorporates in itself, the description contained in the deed or title paper referred to. So, the levy may have the requisite certainty, by reference to natural or artificial objects on the land or to adjoining lands.

In the cases that have occurred, the following levies were held to be bad : Levied on 8000 acres of land, lying in four different tracts, in the county of Stewart.'” Pound vs. Pullen's lessee, 3 Yer. R. 338. “Levied on three tracts of land, one tract containing 300 acres, one tract containing 40 or 50 acres, one other tract containing 110 acres, as the property of Haywood Cozart, all in the county of Carroll.” Taylors' lessee vs. Cozart, 4 Hum. R. 434. “ Levied on lot No. —, in the town of Greenville, with its improvements.” 2 Hum. R. 396.

But in Parker vs. Swan, 1 Hum. R. 84, the description was: Levied on “ John Doak’s seventy acres of land, on the waters of the west fork of Stone’s river,” and the levy was held to be good. As to this levy, it is to be observed, that the county will be inferred from the fact that the levy was made by the sheriff of Rutherford. 3 Yer. R. 338; 2 Hum. R. 396. It states then, the owner of the land, the number of acres, its location, that is, on the waters of the west fork of Stone’s river, in the county of Rutherford. But, without intending to disturb its authority, it must be regarded as going to the utmost limit admissible under the rule before stated.

Now, in view of the rule and the cases referred to, how is the levy in the present case to be considered ?

It is evident that, if the words “ located by Thomas Gilchrist,” be omitted, the levy would be bad. Do those words give it such certainty as to make it good ? The location or entry being the inception of the title and a matter of record if it were referred to and identified by the levy with reasonable certainty, it would become a part of the levy, and be taken in aid of its description. But we think it is not sufficiently identified for that purpose. It does not appear in whose name the location was made, or in what name and section, or in what part of the county the land was located. The name of the owner is the most material fact omitted in the description, in the absence of which, it should otherwise have a reasonable certainty.

Could persons desirous to purchase, ascertain with any convenience] and certainty the locality and identity of land in-1 tended to be sold under this description ? And how is a description in the marshal’s deed, if it were perfect, as it is not, to be connected with that contained in the levy, so as to identify the one with the other without the aid of extrinsic proof ?

It would require parol evidence to show negatively that Gilchrist located but the one tract containing 2500 acres, from which it might be inferred that that was the tract intended to be sold; and if that were not the fact, then the description would become still more vague and uncertain.

But-we have seen that titles held under judicial sales, cannot depend upon evidence of this description for their validity.

We may further observe, that it is not to be presumed as a fact, in the absence of any statement in the levy to that effect, that the entry was made in the name of the debtor, for he may be a purchaser as well as an enterer.

The levy is not aided in the present case, by the description contained in the deed, for it is the same as that in the levy, and no more.

We consider that the levy was void for uncertainty, and that the marshal’s sale communicated no title to the purchaser.

His Honor, the circuit Judge, having considered otherwise) his judgment will be reversed, and the cause remanded for a new trial.  