57 W. Va. 602 | W. Va. | 1905
This is an action of ejectment. In 1861, the lands of John Morris, lying- on the waters of Guyandotte river, were divided into lots and sold under decrees in a chancery proceeding. Lots Nos. 5 and 6 of this division adjoined. No. 5 contained one hundred and twenty-five acres, and No. 6 ninety-three acres. These lots were sold and conveyed to different purchasers under the decrees, and, by successive conveyances, were finally conveyed to Geo. E. Miller, Sr. After his death, his heirs conveyed lot No. 5, together with three acres, part of lot No. 6, to defendant, Hinchman, by deed dated TTth of March, 1893; and, by deed dated 19th of March, 1894, conveyed lot No. 6, reserving said three acres, to plaintiff, Mays. The deed to Mays described the divisional line between these lots as follows: ‘.‘Beginning at a small elm on the bank of Guy-andotte river, corner to lot No. 5 of the John Morris land, lying in the Bend of said Guyandotte river and with said Lot No. 5 N. 13 E. 220 poles to two small black oaks anda dogwood.” The deed to Hinchman described the land conveyed by reference to other deeds, in which this divisional line was described in the same language used in plaintiff’s deed. The location of this divisional line constitutes the controversy in this case. The monuments to this line, the elm at the beginning and the black oaks and the dogwood at the end, are gone. Mach evidence was taken as to the places where these monuments stood. The difference in the location of this line, as claimed by plaintiff, and as claimed by defendant, makes a difference of about two and one-half acres of land. Plaintiff’s declaration describes and demands the whole of Lot No. 6 by metes aud bounds, excepting from the boundary a small strip on the North end of said tract of land, containing about three acres, more particularly described in a deed made by Geo. E. Miller and others to Adam Hinchman. Before trial the parties entered of record an agreement, whereby it was provided, among other things, “that the 3 acres, more or less, conveyed by D. I. Smith and others to Adam Hinchman by deed dated TTth day of February, 1893, and recorded in deed book No. 47 at page 57, and the three acres, more or less, reserved in the deed from D. I. Smith and others to Nicholas Mays dated the 19th day of March, 1894, and recorded in deed book No.
It is contended that the verdict of the jury is erroneous. Notwithstanding the declaration does not demand the whole of Lot No. 6, and notwithstanding the parties, by an agreement entered of record, expressly admitted that the three acres, part of Lot No. 6, was owned by the der fendant, and not by the plaintiff, and agreed as to the boundary line of said three acres, still the jury, by its verdict, gave to the plaintiff the whole of Lot No. 6, including the three acres. It is not necessary for us to determine whether or not the lower court, in the absence of any other error, could have entered judgment for all the boundary found except the three acres, as a new trial must be allowed for other reasons; but see Gallatan v. Hay, 4 W. Va. 1., Chichester v. Boggess, 5 Mun. 98.
Defendant objects to Instruction No. 2, given for the plaintiff. It is as follows: “The court further instructs the jury that if they find from the evidence, facts and circum
As this case must be remanded for a new trial, we shall not discuss the question of whether or not the evidence was sufficient to sustain a verdict in favor of the plaintiff; and we do not express any opinion as to that matter.
For the reasons stated, the judgment of the circuit court of Cabell county, entered in this action on the first day of April, 1902, is reversed, the verdict of the jury set side and a new trial awarded to the defendant, and this case remanded to be further proceeded with.
Reversed.