157 Pa. 484 | Pa. | 1893
Opinion by
There was no error in rejecting the offer recited in the first specification; nor do we think, in view of the evidence, that there was any error in 'declining to affirm the defendants’ first point. On the subject of constructive notice, etc., to which that point relates, the instructions contained in the general charge were adequate, and all that was warranted by the testimony.
The third and last specification challenges the sufficiency of the verdict as a reliable, guide in executing the judgment in favor of plaintiffs. It alleges that the verdict “ is void, in this, that it does not define by a draft or any other paper, what lands the plaintiffs did recover, the jury finding for the plaintiffs the lands described in the prascipe, without saying whether it was the lands described in the original praecipe or the amended praecipe, nor is it material which praecipe, because both praecipes give the plaintiffs the ancient graveyard, whereas it was manifest that it could not be recovered at all by reason of its being visible, open, notorious and readily perceived by a vendee for nearly a hundred years, and hence it was in itself notice.”
This position, we think, is well taken. While the charge of
In view of this instruction, it is not improbable that the jury intended to find in favor of the plaintiffs for this last mentioned piece of land only, and were misled by assuming that the praecipe contained a correct description thereof. But, however that may be, the record discloses an error that ought to be corrected either by amendment or reversal of tlie judgment. For tlie purpose of securing the former and thus avoiding the latter, the plaintiffs, on the argument, moved for leave to further amend their praecipe and correct the judgment so as to restrict their recovery to said last mentioned lot, and thus exclude the old graveyard and additions thereto. As expressed in the motion made and filed here May 24,1893, their proposed amendment, etc., is as follows: “ The plaintiffs in the court below hereby disclaim any and all lands now inclosed within the
The judgment is affirmed accordingly.