Carroll v. Miner , 1898 Pa. Super. LEXIS 325 ( 1898 )

Opinion by

Rice, P. J.,

On the first trial of this case the court instructed the jury, that the levy under the Adriance Platt & Co. writ was upon three distinct lots, and that in locating-the lines of these lots they should be governed by the courses and distances mentioned in the levy, although the result might be to exclude from the levy a portion of the liquor store described therein as being upon the lots. We held upon appeal that this was error. “ Taking the description as a whole there is a seeming contradiction when we come to apply it to the land; the question then arises whether the levy was upon three distinct and separate lots, or upon the three contiguous lots upon which the buildings stand, and which were owned by John Miner and used as one property. It seems to us, after a very careful examination of the cases, that this question should have been submitted to the jury:” Carroll v. Miner, 1 Pa. Superior Ct. 439, 452. The trial judge followed this instruction upon the second trial and the jury have found that a portion of the land in controversy, not actually occupied by the buildings referred to in the description, i. e., that portion lying between the liquor store and the barn was not embraced in the lev}', and, therefore, did not pass by the sale under the Adriance Platt & Co. writ. We remain of the opinion, that the application of the description to the land was, under all the evidence, a question for the jury, and that it would have been error to instruct them that all of the land lying between lots Nos. 1 and 8 was embraced in the levy, even if such instructions had been asked. As we said in our former opinion, following many adjudicated cases: The limitations in a conveyance are always matter of law; what lands are described, the extent of the description, is often a mixed question of law and fact. The extrinsic evidence which we shall not undertake to recite, made it so in the present case, and, finding no error in the manner of the submission of the question, we must accept the verdict as establishing the fact, that the levy was upon three distinct and separate lots. We are, therefore, not at liberty to reform the levy and sheriff’s deed by substituting one lot for another, upon the supposition, plausible as it may be, that tbe sheriff intended to lev}r upon and sell tbe former, but, by mistake, described the latter.

We come then to the location of the side lines of lots Nos. 1 and 3. The description calls for two lots, each thirty-three and one half feet in front, the former adjoining the lot in controversy on the north, and the latter adjoining it on the south. Locating these two lots by the calls for the adjoiner and the courses and distances, and tbe whole of the land in controversy would be excluded from the levy. But the court held, following our former opinion, that these matters of description were so far controlled by the call for the buildings, which were to be treated as monuments, that it must be presumed that the sheriff intended to levy, and did levy, upon all the land upon which the buildings actually stand, and left it to the jury to determine from all the evidence, taken'in connection with tbe description, whether more was included in the levy. In submitting this question to the jury, and in the manner of its submission, we find no error of which the defendant has a right to complain; and as the legal principles governing the case were very fully considered in our former opinion no good purpose would be subserved by separate discussion of each assignment.

Something was said upon the argument as to the indefiniteness of the verdict, and as to the inclusion in it of part of lot No. 1, which was not .embraced in the writ of ejectment and .was never claimed by the'.plaintiff. We will not discuss these objections to tbe form of tbe verdict, since neither of them is raised by the assignments of error. We remark, however, that it seems to us, that the fair construction of the verdict is, that the jury found in favor of the plaintiff for that part of the land described in the writ which lies between the liquor store and tbe barn. Thus construed it would include no part of lot No. 1.

J udgment affirmed.