The single question in this case arises on a bill of exceptions to the admission of certain testimony. In order to judge of its correctness, we must ascertain what was the matter in dispute before the jury at the time the testimony was offered and received.
The action was ejectment for a tract of land containing 158 1/2 acres. In 1822, George Pumroy was owner of this tract, and also of another of 326 1/2 acres, lying near to it, but not adjoining. A judgment had been obtained against Pumroy for the sum of $400, and an execution issued, on which the sheriff returned that he had levied on ' a certain tract of land, situate in Derry township, adjoining lands of James Henry' (and a number of others), 'containing 400 acres, more or less, of which 60 acres were cleared land, and 30 acres of meadow, and on which were erected a grist-mill, dwelling-house,' & c., &c. A sale was made by the sheriff under a writ of venditioni exponas, and a deed delivered by him to John Rhey, legally conveying to him the tract of land as described in the levy. Under this deed, Rhey took possession of the tract of 326 1/2 acres, on which the grist-mill was erected, and has held it from the year 1822 till the present time. In 1841, he made a conveyance to Isaac Atkinson, the plaintiff's lessor, a citizen of Ohio, in whose name the present ejectment was instituted for the other tract, owned by Pumroy, of 158 1/2 acres, and now in the possession of the defendant, Cummins.
The only evidence offered in support of the plaintiff's claim was, that two of the adjoining tracts, called for as boundaries in his deed, did not adjoin the mill tract of 326 1/2 acres, but were contiguous to, and adjoined the tract of 158 1/2 acres. It was admitted, that all the other parts of the description correctly applied to the larger tract, but it was contended that, if this portion of the description applied only to the other, the levy and deed for this reason included both.
The defendant, on the contrary, insisted that the levy and sale did not embrace any part of the land in dispute, and gave evidence to prove that it was a distinct and separate tract of land, having a house, barn, orchard, and 100 acres of cleared land, not occupied or used in connection with the larger or mill tract. They contended, also, that the deed called for but one tract of land, which was well described, except in this one particular, which was evidently an ambiguity, caused by a mistake of the sheriff in making his levy.
The defendant might, perhaps, have safely rested his case on the evidence as it now stood, but, in order to remove all possible doubt, he offered to prove by the sheriff 'how the mistake in the description occurred; and that the purchaser and other bidders at the sale had remarked this ambiguity in the description, and were informed how it happened, and were perfectly aware that but one tract was levied on and offered for sale, called the mill tract. That Rhey, the purchaser, was fully aware of it, and accordingly claimed and took possession of the mill tract only; that the sheriff, having afterwards heard a report that Rhey was asserting a claim to the property in dispute, took occasion to inquire of him if it was true; and that Rhey replied, 'that if he had said so it was only in jest; that he had bought and paid for one tract only, and to claim them both would be too much like putting his hand in his neighbour's pocket and robbing him."
To the reception of this testimony the plaintiff's counsel objected, and the admission of it by the court forms the subject of the bill of exceptions now under consideration.
It is contended that this testimony ought not to have been received, because 'the levy, fieri facias, venditioni exponas, sheriff's deed, &c., are records, and parol evidence is not admissible to contradict, vary, or limit the description of the premises contained in them.'
This proposition is undoubtedly true. But it assumes the very fact in dispute, and on which the jury were about to pass, on parol proof given by both parties. It is true that, if a sheriff levies on a whole tract of land, and describes it accurately in his levy and deed, parol testimony cannot be received to show that he intended to sell less than his deed describes, or that he excepted a part of the premises at the time of the sale.
But that is not the case before us. The testimony offered is not to contradict the levy and deed, but to explain and confirm them. The plaintiff's testimony had shown that there was a latent ambiguity on the face of his deed. It purported to convey a single tract of land; it described one tract completely, with a single exception which applied to another. It might be void for uncertainty, if its description equally applied to two tracts, while it clearly purported to convey but one. It might convey one, and the part of the description which did not apply to that would be rejected as falsa demonstratio, or misdescription. Or it might possibly be intended to convey both; but in the present case the latter supposition had hardly a shade of probability to support it.
It would be of little profit to notice the infinite variety of cases on this subject, or to seek for one precisely in point with the present. The general rule is well stated by Tindal, Chief Justice, in the case of Miller v. Travers (8 Bingh. 244), that 'in all cases where a difficulty arises in applying the words of a will or deed to the subject-matter of the devise or grant, the difficulty or ambiguity which is introduced by the admission of extrinsic evidence may be rebutted or removed by the production of further evidence upon the same subject calculated to explain what was the estate or subject-matter really intended to be granted or devised.'
The deed in this case called for but a single tract of land, the purchaser had himself taken possession and held up to certain boundaries for near twenty years, and had thus by his acts given his own construction of an ambiguity in his deed which he now showed by extrinsic evidence to exist. The evidence offered tended to confirm what appeared on the face of the deed; that but one tract was sold; that the practical location of his grant made by the purchaser was correct; that he had not acted under a mistake of his just rights, but had a due appreciation of the merits of the claim now set up to the land in question. This testimony may have been superfluous and unnecessary, but was not irrelevant or illegal. It did not contradict the record or deed under which the plaintiff claimed, but showed the gross injustice of the claim now attempted to be established under cover of an ambiguity in their terms.
The judgment of the Circuit Court is therefore affirmed.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Western District of Pennsylvania, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs.
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