This is аn action in ejectment in the usual form, instituted October, 1895, in the circuit court of Maries county, for the recovery of the possession of a tract of land in said county described in the petition as the “north fractional half (left bank of the Gasconade river), of section 30, township 41, range 8.” It was tried upon the petition and answer of the defendant Ray James, to which thеre was no reply. The substance of the answer (after denying the allegations of the petition except as in the answer admitted) is that the said defendant has been informed and believes that the land which the plaintiff claims to own and seeks to recover is a piecе of land some fifty acres in extent in section 30, township 41, range 8, on the south side of the Gasconade river, and on the inside of a field owned by the said defendant and of which he and his ancestors and their grantors have been in the open, notorious, continuous, adverse, and pеaceable possession for more than forty years, claiming title thereto under pаtents from the United States conveying to them the south half of section 30, township 41, range 8, and which wаs occupied by his tenants at the time this suit was commenced, one of whom was his codefendant, William Haynes. It appears from the undis
As to these titles of the parties respectively, there was really no dispute. The serious and vital question in the case was the location of the dividing line between the north fractional half, and the south half of said section 30, both lying south of the Gasconade river, by which would be determined the primary and main question, whether any, and if so what pаrt, of the defendant’s closed field of about one hundred acres, referred to in his answer, wаs within the boundaries of said north half? The plaintiff claimed that some of it was; the defendant denied that any of it was within those boundaries, and until this issue was determined, no intelligent inquiry and determination cоuld be had of the further issues in the case. This issue was not intelligibly submitted to the jury by the only instructions on this branch of the case, which are as follows:
“Under the evidence the jury is authorized to find for plaintiff аs to any certain undivided interest that they believe he may be entitled to, which can in no evеnt exceed under the evidente four-sixths.
“If the jury find for the plaintiff the verdict will be for the amount of thе land in possession of the defendants not exceeding an undivided four sixths as shown by the evidencе, and assess his damages at the amount you believe he has sustained, under the evidence, not to exceed $500, and that the monthly rents and profits are valued at $- per month. The*314 damagе to be assessed is the amount of the value of the rents and profits from the second day оf January, 1894, to this date.”
The issue was not determined by the verdict, which is as follows:
“We, the jury, have rendered a verdict in favor of plaintiff: for the undivided four sixths of all of the north half of section 30, townshiр 41, range 8, south of the Gasconade river as described in patent; also damages to amount of $50 and damages and rent at $2.50 per month from date.”
Nor was it adjudicated by the judgment of the court thereon, which is as follows:
“It is therefore considered by the court that the plaintiff recover of defendant the possession of the lands in the petition described as follоws, to wit: The undivided four-sixths of the north half of section thirty (30), in township forty-one (41), of range eight (8), south of the Gаsconade river, together with the sum of two and -nñr dollars, the monthly value of said premises from thе date of this judgment until the said plaintiff be restored to the possession of said lands and tenemеnts, and it is further ordered and adjudged that plaintiff be awarded a writ of restitution, and that he have and recover of defendant his costs and charges in this suit laid out and expended and have еxecution therefor.”
The boundaries of the land really in dispute are not indicated by anything contained in the verdict or judgment, and an execution upon this judgment would afford no guide whatever to the officer seeking to execute it, as to what land in the possession of the defendant he was to restore to the possession of the plaintiff, and not being susceptible of intelligent execution, ought to be set aside. Robertson v. Drane,