Neel v. Hughes , 10 G. & J. 7 ( 1838 )

Chambers, Judge,

delivered the opinion of the court.

The facts in the record shew that the instruction asked for had a direct influence on the character of the verdict, by lessening or increasing the quantum of damages, and wherever such a result will probably follow, the unsuccessful party is entitled to his exception.

If the title of Riley had been vested in Edward Hughes, as was claimed, then the jury must assess the entire damages in this action ; whereas, if according to the position of the appellee’s counsel, the suit could be maintained by the plaintiff’s owning one-half the interest in the property, the jury should have given but half the damages. It is therefore unnecessary to decide, whether the action could have been sustained without the proof objected to.

The argument has assumed that the opinion asked for was substantially, whether any interest passed by the trustee’s deed to Edward Hughes.

The language of the motion is, that it did not convey an 4Cundivided moiety” of the tract; but in connection with the other parts of the record, wrn think ourselves warranted in regarding it, as it seems to have been considered in argument here, and in the court below, that the refusal to grant the instruction asked for was an.assertion that the deed did convey' the title of whicli George Riley died seized.

Every conveyance must either on its face, or by words, of reference, give to the subject intended to be conveyed, such a description as to identify it. If it be land it must be such as to afford the means of locating it.

The deed of a, trustee acting under a chancery decree is subject to the same law, nor can it convey more than the decree or order has authorized him to convey.

■This is not like the case, where a trustee avowedly going beyond the terms of his decree, sells property in a mode, or with conditions variant from the decree, or in any way exceeds his authority,' and reports the whole matter to the court, and obtains a confirmation of all his proceedings.

If the trustee in his report of this sale, had made a perfect description of the property sold, and the sale had been ratified, it would have been within the cases referred to.

. The report, in this case stales that the trustee had sold 'the land mentioned in the decree.

The advertisement to which the counsel referred us, proposes to sell “ all the right, title and interest, being an undivided moiety, of, in, and to .the'following tracts, pieces, or parcels of land,- viz: part of a .tract of land called the Cow Pasture, part of a tract called Mount Pleasant, &c.”

What portion of the tract, whether on the one side, or the other, is no where described, nor is a reference made to any means of .ascertaining it.

The.quantity of land proposed to be sold out of the tract called Mount Pleasant, is not stated in the petition, decree, advertisement, or report; but if it had been stated, there is nothing to entitle the purchaser under this description, to one particular part of the tract more than another. The terms apply as well to any one portion, as to any other, and to no one portion particularly.

. The deed of a trustee acting under the authority of the court, cannot pass title to a purchaser in land, which the court have .never directed to lie sold, or the' sale of which they have never confirmed. The deed is only designed to transfer the legal title, where the sale and ratification had previously given the equitable title. Here the defect in the petition and decree, and in the proceedings of the trustee, prevented the purchaser from obtaining any title to any part of this tract, and the deed could not remedy it, and did not therefore pass any interest in the lands.

For these reasons we think the court erred.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.