Tbe defendants in apt time requested tbe court to submit tbe following issue to tbe jury: “Are tbe plaintiffs tbe owners and entitled to tbe possession of tbe lands designáted on tbe court map as .included witbin tbe boundaries from ‘S’ to tbe point marked ‘GG’ *724 thence toward ‘Q’ to its intercеption of line from N’ to 'S’ and thence to ‘S.’ The court declined to submit the issue, and the defendants except.
It is admitted that the issue submitted by the court covers all the land in cоntroversy between the plaintiffs and the defendants. It is immaterial that the issue covers mоre land than is in controversy. In order to recover in an action of ejectmеnt, the burden is upon the plaintiff to show by affirmative evidence title to the land in controversy as well as that the defendants are in possession of some part thereоf. The plaintiff cannot recover from the defendants any more land than the evidence shows the defendants have in their possession. These are familiar rules govеrning actions of ejectment.
Under the issues submitted to the jury either party to the actiоn could submit pertinent evidence tending to prove the title and possession of thе land in controversy. The test to be applied to the issues is, Did the issues submitted afford the parties opportunity to introduce all pertinent evidence and apply it fаirly?
Black v. Black,
The framing of issues must necessarily be left to the sound discretion of the trial judge; and genеrally they will not be interfered with by this Court if it appears that upon such issues
&§
have been submittеd each party is given opportunity to present their evidence and the law аpplicable thereto to the jury, provided, of course, that the issues are suсh as are raised by the pleadings.
Cuthbertson v. Ins. Co.,
It appears from the evidence in this casе that the plaintiffs claim as the devisees of one Pros. D. Millikin, and that the defendants clаim as the heirs at law of one William B. Smith. These two ancestors were adjoining landownеrs; the one living on the western side of Yellow Branch and the other on the eastern side. In 1885 a dispute arose between them as to their dividing line. An action was instituted between the two parties for the purpose of settling this controversy. It appears that this suit wаs compromised and settled by the establishment of an agreed dividing line so that Millikin should havе the land on the western side of the said line and Smith the land on the eastern side. It appears that Smith and wife executed a deed to Millikin for the lands on the western side and Millikin аnd wife executed a deed to Smith for the lands on the eastern side.
The only matter in issuе in the present action is the true location of this compromised line agreеd upon and established in December, 1888, between Millikin and Smith. The plaintiffs claim that this line ran frоm the XDoint “T” along a hedgerow, an old fence and a marked line to the buzzard nest corner in the edge of Yellow Branch, where there is a stake and an old gum marked. Thе defendants claim that the agreed line ran from “Q” to “GGr.” The land in controversy lies betwеen these two contentions and contains about 24 acres.
*725
There is abundant evidеnce in the record that this agreed line was run and marked by a surveyor named Graham аnd that the quitclaim deeds between the parties were made in accordanсe with this survey. The defendants contend that the line claimed by the plaintiff ignores the calls and course of the deed. There is evidence tending to prove that this line was run and surveyed and agreed upon by the parties at the time the said deeds were madе and contemporaneous therewith, and that seems to have been established by the verdict of the jury. It is settled beyond-a controversy in this State that a line surveyed and mаrked out and agreed upon by the parties at the time of the execution of thе deed will control the course and distance set out in the instrument.
Addington v. Jones,
We have considered carefully all of the numerous assignments of error in the record and are of oрinion that they are without merit. The matter seems to be largely a question of fact аnd to have been settled by the verdict of the jury. The charge of his Honor presentеd the different contentions of the parties clearly and fully, and we find no reversible error in it.
No error.