134 Ky. 70 | Ky. Ct. App. | 1909
— Reversing.
On October 17. 1902. John R. Meadows and wife entered into a written contract with H. F. Finley, by which they sold him five surveys of land in Whitley county, Ky., at $8 an acre; he paying them at the time $150 of the purchase money and agreeing to pay the balance as soon as the lands could be surveyed, the number of acres ascertained, and the deed made. On March 2, 1907, they brought this suit against him, in which they charged that the five tracts of land contained in the agrégate 506% acres, 'as shown by a survey which had been made, 'and that they had tendered him a deed pursuant to the survey, which he refused to accept. They prayed judgment 'against him for $4,052, being the price of the land at $8 an acre subject to a credit of what he had paid; he having in the meantime paid them $1,002, in addition to the $150 paid when the contract was made. Finley filed an answer, in which he denied that the five tracts of land were bounded as described in the petition or contained more than 404.4 acres. The case came on for trial before a jury. There was sharp controversy between the parties as to the proper location of the lines of each of the tracts. The quantity of land in each tract depends upon the proper location of ¡he lines of the survey. Two of the surveys called-for 100 acres each, and the other three each called for 50, so that the calls of the patents on these five surveys were in the aggregate for only 350 acres. The plaintiff introduced on the trial a map marked “A,” and the defendant a map marked “1”; each-showing the location o-f the first survey as each claimed it should be located. The jury, under the instruc
The thing in controversy between tfie parties was how much land was embraced in the five surveys in controversy. The defendant conceded that he was liable for what land there w!a.s at $8 an acre, but he insisted that there was something over 100 acres less in the five surveys than the plaintiff claimed. The jury did not find a general verdict. They simply found a special verdict that each of the five tracts was located as shown by the m)ap introduced by the plaintiff. These maps did not show how many acres 'the tract thus located would contain, and so when the verdict was returned the court had nothing before it from which it could ascertain with any accuracy how much land there was. A special verdict is not -sufficient unless it finds the facts necessary to enable the court from the pleadings 'and -the verdict
One of the surveyors testified: ’That the five tracts formed one boundary of land; thiat he obtained the outer boundary by comparison of the deeds, patents,, and so on, found on file in the suit and used in evidence. before the jury; that he found the boundary of the Le Moyne land among some of the papers, and made a calculation from that. The Le Moyne land had to be deducted to ascertain what was contained in the five surveys. Taking into consideration all these means of information, this surveyor came to the conclusion thiat the five tracts of land contained ihe quantity, set out in the judgment of the court. The other surveyor testified that it was impossible to take the five maps referred to by the jury and ascertain from them how much land the five tracts contained, for the reason that some of the tracts lapped upon others, land that no one could tell from the maps how much the lap was. It is manifest from this proof that the special verdict of the jury is not sufficient to enable the court to enter judgment determining the quantity of land in the five tracts, for one surveyor said it could not be done at all, land the other sur
Judgment reversed, and cause remanded for further proceedings consistent herewith.