Jackson v. Jackson

• Court: North Carolina Supreme Court
• Writing for the Court: NASH
• Citation: Jackson v. Jackson, 13 Ired. 159, 35 N.C. 159 (N.C. 1851)
• Decision Date: 31 December 1851
• Parties: DEN ON DEMISE OF JOHN H. JACKSON v. IREDELL JACKSON.

13 Ired. 159

35 N.C. 159

DEN ON DEMISE OF JOHN H. JACKSON

v.IREDELL JACKSON.

Supreme Court of North Carolina.

December Term, 1851.

In claiming land under an execution sale, the enquiry is, has the Sheriff sold this particular land, and his return is to be taken as true, until the contrary appears.

Where the Sheriff returned, “Levied on 265 acres of land, lying, &c., whereon Iredell Jackson now lives,” and in his deed conveyed two tracts, one of 100 acres and one of 165, not contiguous, but separated by another small tract, and it appeared that the defendant lived on one tract, and cultivated the whole as one plantation; Held, that the levy and conveyance by the Sheriff were not too indefinite nor inconsistent.

Held, further, that in such a case, parol evidence of the identity of the land was properly admissible.

Appeal from the Superior Court of Law of Surry County, at the Fall Term, 1851, his Honor Judge MANLY presiding.

The case is stated in the opinion delivered in this Court.

Gilmer and Miller, for the plaintiff .

No counsel for the defendant.

NASH, J.

In this case, the lessor of the plaintiff claimed through a judgment and execution against the defendant, in favor of himself. The levy on the defendant's land, under which the sale was made, was as follows: “Levied on 265 acres of land lying on the Arrarat river, adjoining Tyro, Glen, and others, whereon Iredell Jackson now lives.” A further return was endorsed, viz: “sold the same on the 10th day of November, as the property of Iredell Jackson, to John H. Jackson for $495. &c.” The defendant had title to 265 acres of land by two deeds, one for 165 acres, and the other for 100. These two parcels at the same point were fifteen chains distant, having a parcel of 74 acres between. The defendant's dwelling house was on the parcel of 165 acres, his barn on the 74, and his cultivated fields occupied portions of the three parcels (of the 100 acres, as well as the others) and the premises had been thus occupied for more than 20 years. The Sheriff's deed to the lessor of the plaintiff describes the land sold as the 165 acres, and the 100 acres, and conveys them by separate descriptions. The body of land is on the Arrarat river, adjoins the lands of Tyro, Glen, and others, and is embraced within the plaintiff's declarations.

The tax list was introduced, and the Justice appointed by the County Court to take it, who proved that the land was given in to him as a single parcel, and was entered on the list as 165 acres, adjoining the lands of Tyro, Glen, and others. The return of the sale, and the evidence of the tax list taken, were objected to, but received by the Court. There was also evidence on the part of the plaintiff, that the land in question was by each proprietor, as now, cultivated as one plantation, and regarded and known in the neighborhood as one parcel only. The defendant offered in evidence the record of a former suit, by action of ejectment between the parties, for the premises, but the Court ruled it to be inadmissible. On the part of the defendant, it was insisted, that the Sheriff could not, legally, sell but one parcel, under his levy, viz: the 165 acres; and that, if he could sell more, he could sell only 265 acres, including the parcel he levied on and the lands adjoining; that the deed for 100 acres was void, and, especially, that a deed for two parcels, when his levy described it only as...