¶1 dissenting.—Not having agreed to the opinion and judgment of the majority of the court, I will briefly state the grounds of my dissent.
¶2 It is conceded, that at the time of the sheriff’s sale under which defendants claim, J. Mayrant Smith neither owned nor claimed the whole of the Bundick league, nor any interest which extended throughout that tract; but that he did own an undivided interest in a smaller tract in the league, which had been segregated from the remainder. This the sheriff undertook to sell. There was no assumption made that the whole league was to be sold as Smith’s property. The effort was to reach a portion of it which he did own. The description given of the thing to be sold was, all the right, title, and interest of Smith in the league. This did not fit the property which he owned, and which it is claimed passed by the sale. The right which Smith had to an undivided interest in a specific portion of the league is not, in my opinion, designated by the language used in the levy and deed.
¶3*256 The case is unlike one where a sale is made of the whole of a tract, and it subsequently turns out that the title of the judgment debtor was defective as to a part. Having bought the whole tract, the purchaser could, in such case, probably hold any part of it to which such debtor had a good title.
¶4 Here the effort was to sell a part under a description of the whole tract. The owner of the land could do this, for the courts would carry out his intention and ascertain what his interest was in the subject matter described. But the law, for the protection of the parties to executions, as well as of purchasers, requires sheriffs to so describe the property levied on that all may know from the description what is being sold; and will only allow paroi evidence for the purpose of applying the description to the land, and of thereby identifying it. And the description must be sufficient for this purpose.
¶5 The words “right, title, and interest” are not, it seems, descriptive of the parcel of land to be sold, but are restrictive of the character of the title to be conveyed to the purchaser. To require parties interested to find out, by an investigation of titles, what lands the debtor owns, and from the result argue that those were the lands intended by the sheriff, would defeat the object of the well settled rule just stated.
¶6 In almost all of the descriptions which have been held defective by our Supreme Court, a large tract was sufficiently described; but the vice consisted in the effort to sell an undescribed portion of such larger tract.
¶7 Thus in this case, if the sheriff, to the language used, had added that the interest of Smith consisted of an undivided half or a specified number of acres in said league, there would be no pretense that a sale under such description could be upheld. And yet this is just the state of facts found to exist when the effort is made to apply the language employed in the levy and deed to the case.
¶8 The uncertainty and confusion which would arise in the minds of parties in the case supposed would not be removed, but augmented, by the fact that land not claimed by the debtor is included in the levy. Though bounds may be indicated which include that which is to be sold, this can not, it would seem, be sufficient if such land is not pointed out so that the public and the parties interested may know what it is.
¶9 I fail to perceive in what a description which undertakes to identify such a portion of a large tract as Smith owned by a description of such larger tract, is better than one which, in addition to describing the whole, undertakes, but fails, to designate the particular part to be sold.