Clark v. Clark, 7 Vt. 190

Clark v. Clark

7 Vt. 190 | Vt. | 1835

The opinion of the court was delivered by

Williams, Ch. J.

In this case, several'questions arose dn the jury trial. There was also a motion in arrest, which was overruled. The ground of this motion is, that the premises in the plaintiff’s declaration are so described, that it cannot now be ascertained for what the recovery was had. We have not examined particularly the questions which arose on the jury trial, as we are decidedly of opinion, that the motion in arrest should have prevailed'. The action of ejectment in England, is solely a possessory action, and determines nothing more than thfe' right to possession, at the time of the demise laid in. the declaration. In this state, the declaration counts upon a seisin in fee, and the judgment rendered thereon is conclusive against both the plaintiff and defendant and their heirs. It partakes so much of the nature of a real’ action, that a greater degree of certainty is required in the description of the land, than would now be required in England. While the action of ejectment was compared to a real action, as great a degree of certainty was required, as in a prcecipe quod rtddat. While the prcecipe was used only in an adverse suit, and in the action of ejectment, it was considered as necessary to give a description sufficiently certain and particular, to enable the defendant to know for what he was called into court, and against what he was to defend. It was formerly considered that the description must be so certain, that the sheriff might know of what to deliver possession ; and although the rule, which requires this strictness, has been in some measure relaxed, yet it is still necessary, that the premises should be so described, as that the defendant may be able to ascertain what is sued for, and that the plaintiff may be able to point out the land recovered to the sheriff, who may execute the writ of possession. It would undoubtedly be sufficient to designate the land sued for, as a lot of such a number, or a division laid to a particular right, or by any description by which the particular location could be ascertained, but a description as a lot containing so many acres, ajelóse, or piece oi','inr! '";,K^nt any words to designate the partic”1”-’-' '■ •*. *194close, or piece,. would not answer. A reason is given, why the practice, as to making a particular description, has been altered, that the sheriff now delivers possession according to the directions of the plaintiff, and if he takes possession of more than he recovers, the court will, in a summary way, correct the procedure. For the same reason, it is necessary that there should be such a description, either in the declaration or in the verdict, that the court can ascertain by the proceedings before them, for what the recovery is had, and rectify the proceedings if the plaintiff takes possession of too much. In this case, the description is’ so vague and indefinite, that the plaintiff cannot ascertain for how much, or what particular land, the jury intended to find a verdict. The court have no means of ascertaining, except by inquiring of the same jury who returned the verdict, to what part of the land, in the possession of the defendant, the plaintiff made a title. The declaration fixes the south boundary with sufficient certainty, as the land sold by the plaintiff to, and occupied by Burr R. Clark. The east boundary is sufficiently definite, to wit, on the farm of Silas Green : But the north and west boundary is the land on which the defendant resides. The action supposes the defendant in possession of the land claimed by the plaintiff, and his possession extended south to the land of Burr R. Clark, and east to Silas Green’s farm. It will be difficult to find a boundary between the possession of the defendant and the land of Burr R. Clark, if the possession of the defendant extended to that line. It is very apparent, therefore, that there is no land described in the declaration. I.t is impossible to ascertain for how much the recovery was had, or to what the plaintiff made title. If the plaintiff should direct the sheriff, in executing a writ of possession on the judgment, he might take possession of ten, twenty, or any indefinite number of rods north of Burr R. Clark’s land ; and if he took possession of more than he was entitled to, the court could not relieve, as they could not ascertain for how much the jury'intended to find a verdict. The special verdict was only for the land west of a certain road, but does not obviate the difficulty arising from the imperfect description of the north boundary. The case of Arnold against Whitney & Dyer, decided in this county in 1817, (not reported) is an authority directly on the question before us. That case was decided after an argument, and after sevéral decisions had been made to the same effect. The judgment was there arrested for an uncertainty in the description, not as vague or indefinite, as the description in this declaration.

The judgment of the county court is reversed, and the judgment arrested.