28 Gratt. 766 | Va. | 1877
delivered the opinion of the court.
This was an action of ejectment in the circuit court ■of Lee county, with verdict and judgment for the defendant on issue joined on the plea of “not guilty.” 'A supersedeas to the judgment, awarded the plaintiff by one of the judges of this court, brings the case here for review.
At the trial both parties asked for instructions to the jury, some of which were given, and others refused, and the plaintiff excepted.
After verdict rendered, he then moved the court to set it aside and grant him a new trial, on the ground, 1st, that the verdict was contrary to the evidence; 2d, because of alleged misconduct of one of the jurors on the trial. This motion was overruled, he again excepted, and the bill of exceptions taken contains a certificate of the facts proved on the trial.
From this certificate, it appears that both parties
Afterwards, to wit: on the 18th day of April 1853,. Fisher, by deed of that date by his attorneys, conveyed to the said Duke Covey a tract of land, estimated as cpntaining three hundred acres, and no doubt' the same land excepted in the previous conveyance to Crabtree. Amongst other evidences of this fact, it appears by the deed of conveyance to Crabtree, that the white oak, designated as a corner 2 i on the plat of survey filed in this cause, is described in said deed as “a corner to Duke Covey”
The defendant claims title through Covey, and the plaintiff through Crabtree. The two tracts of land,, claimed by the parties respectively, are.eo-terminous on the eastern side of Trading creek, and the dispute is as to the true dividing line between the tracts on that side of the creek.
The beech and dogwood, designated on the plat as
The land enclosed by these disputed lines is somewhat less than two acres, and is the whole subject of the controversy in this case. Its actual value is not disclosed by the record; but if it is anything like proportionate to the price which was paid by the parties for their respective tracts, as indicated by the deed, it must be very inconsiderable. It seems to me it would have been wise if the parties had, in some way, settled this apparently trifling matter between themselves without the cost and vexation of litigation.
The plaintiff', in support of his claim, rests wholly upon the title papers in the ease, relying as well upon the descriptions in the conveyances under which the defendant claims, as upon these in the deeds under which he himself derives title; and it certainly does appear from these conveyances, that the descriptions contained in them are substantially the same. The deed from Crabtree and Dickinson to Wood, under whom the plaintiff claims, calls for the beech and dogwood, “ thence S. 70 W. to the creek and down the same 115 poles to a white oak, a corner to Duke
It was proved that no marked trees were found standing immediately on the line S. 24 W. from the beech and dogwood to the corner white oak. Some trees were found suitable to be marked as line trees, but most of the timber for a considerable distance on the line had been destroyed. A sugar tree, however, was found standing near the head of the spring aforesaid with two chops on it, marked suitably for a side line; but the witness who spoke of it did not know whether it was marked for a line tree or not. It was also proved that in the year 1867 or 1868 (which was some six or seven years before the institution of the plaintiff’s suit) the plaintiff pointed out two stumps on the line between the beech and dogwood and the spring, which he said had been marked line trees standing on the line, and that he then claimed that his line ran from the beech and dogwood through the •head of the spring. It was further proved that the plaintiff had never exercised any ownership over the land in dispute, and that the defendant’s possession corresponded with his claim of title.
Upon these facts, certified by the judge presiding at •the trial as proved by the evidence, the jury by their
There is nothing in the objection made in the court below to the verdict, on the ground of the alleged misconduct of one of the jurors on the trial. No argument was made here upon this assignment of error, and it is regarded as properly abandoned. All. the material statements of the ex parte affidavit of the plaintiff in error were contradicted and disproved by the counter affidavit of the juror.
The instructions given by the court to the jury were in accordance with the principles recognized by this court in Herbert & wife v.Wise and others, 3 Call 240;. Baker v. Seekright, 4 Hen. & Mun. 177; Dogan v. Seekright, 4 Hen. & Mun. 125; Pasley v. English & als., & Gratt. 141.
In Herbert & wife v. Wise and others, supra, Judge Pendleton said: “To pursue the proper descriptions of our land. boundaries, would render men’s titles very precarious, not only from the variations of the com
In Baker v. Seekright, supra, it was held that when a deed mentions the course and distance of a line, without any other description thereof, parol evidence is ■admissible to prove marked trees, not in the course or termination of that line to be the true intended line.
Adverting to this ease, Judge Roane, in Dogan v. Seekright, supra, says: “In that ease parol evidence was admitted to establish a marked line, which did not correspond with that mentioned in the deed either as to course or distance. It was so admitted, on the ground that the description in the deed may have been mistaken, whereas the marked and reputed line being more stable and permanent ought to prevail, or at least be submitted without prejudice to the consideration of the jury.”
I see no error in the instructions taken all together, which were given by the court, nor in the refusal of the court to give those which were rejected.
Upon the whole matter I am of opinion to affirm ■the judgment .of the circuit court.
The judgment was as follows:
This day came again the parties by their counsel,
Judgment appirmed.