Brothers v. Mitchell, 157 Pa. 484

Brothers v. Mitchell

157 Pa. 484 | Pa. | 1893

Opinion by

Mb. Chibe Justice Sterrett,

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 *489the court indicates that it was not intended to include in the verdict the old graveyard or the strips of land added thereto on three sides thereof, the original as well as the amended preeeipe do not appear to harmonize with that intention, and hence, in executing the judgment in accordance with the verdict upon which it is based, tlie old graveyard, as enlarged, would not be excluded. Referring to the extent of tlie plaintiffs’ claim, the learned judge, in his charge, said: “They, however, do not claim that part of the graveyard that was then fenced. Subsequently to tlie deed of conveyance by Joseph Mitchell and wife to plaintiffs, .... tbis graveyard was enlarged by extension on three sides, and subsequently a pale fence was erected around it. The plaintiffs do not claim to recover even that much of it, but there was one acre and 29.89 perches of land lying between the pale fence and the public road, which was not fenced off, which tlie plaintiffs now seek to recover. That much of it was in no way fenced at the time of the conveyance from Joseph Mitchell and wife to the plaintiffs. They don’t seek to recover either the old ground, as it was originally fenced when Joseph Mitchell owned the laud, nor do they seek to recover that which was added to it afterwards on tlie three sides up to the line as was explained on the draft. Therefore, the land in dispute is that part which lies between the pale fence, as shown to you on the draft which was exhibited to you and given in evidence, and the public road, wbicb contains one acre and 29.89 perches.”

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 *490present paled fence, being the lands comprising the ancient graveyard and the addition thereto upon three sides, containing fifty and eleven one hundredths perches (50.11) ; and expressly declare that in the matter of the above entitled action in the court below, and the verdict of the jury rendered therein, the plaintiffs (appellees here) only claim to have and recover the lands lying between the Newport road and the graveyard (including the addition upon three sides) inclosed within the present paled fence, containing one acre and twenty-nine and eighty-nine one hundredths (1. A. 29.89 Ps.) perches.” There cannot be any reasonable objection to this'proposed amendment. It is entirely proper even at this stage of the case. It will enable us to affirm the judgment, and at the same time protect the rights of the defendants so far as they are entitled to protection ; but, in the circumstances, we grant it only on terms that the plaintiffs pay all costs that have accrued in the court below, as well as in this court, from the time of their ineffectual attempt to amend in the court below to this date. The record being thus amended, there is no reason why the judgment thus restricted should not be affirmed, with costs to be paid by the respective parties, in accordance with this opinion.

The judgment is affirmed accordingly.