In an ejectment for a tract of land, the declaration described
the same by specific metes and bounds. The jury found a verdict for
the plaintiff, stating the defendant to be guilty of the trespass
in the declaration mentioned, and "that the plaintiff do recover of
the defendant the land described as follows," describing the same
and referring to a diagram and report of a survey of the land in
controversy, which was in evidence.
This verdict was for but a part of the land claimed in the
plaintiff's declaration. The circuit court, on motion of the
plaintiff's counsel, instructed the jury to find a general verdict,
saying that the plaintiff could take possession at his peril, and
the jury found according to the instructions of the court.
Held that the jury was right in its original verdict, and
the instruction of the court that it should find a general verdict,
the plaintiff having established a title only to part of the land,
was erroneous.
The real question before the Court is whether the defendant,
upon proof of a title to part of the premises described in the
declaration of ejectment, is by law entitled to a general verdict
for the whole of the premises sued for. That the action of
ejectment is a fictitious action and is moulded by courts to
subserve the purposes of justice in a manner peculiar to itself is
admitted, but the professed object is to try the titles of the
parties, and the jury is bound to pass upon those titles as they
are established by the evidence before it. It therefore des no more
than its duty when it finds a verdict for the plaintiff according
to the extent and limits of his title as it is proved by the
evidence. It is equally its right so to do since it is comprehended
in the issue submitted to its decision. If, therefore, it finds by
the verdict according to the truth of the case that the plaintiff
has title to part only of the premises in the declaration, and
describes it by metes and bounds, and that so far the defendant is
guilty, and as to the residue finds the issue for the defendants,
such a verdict, in point of law, seems to be unexceptionable, and
if so, the judgment following the verdict ought to conform to it,
and if it should be a general judgment for the whole premises
demanded in the declaration, it would be erroneous. Such, upon
principle and the analogies of the common law, would be the result,
and the authorities clearly establish the doctrine, and it is
confirmed as a matter of practice by the best text writers on the
subject.
The case agreed by the counsel for the plaintiffs in error and
for the defendants in this Court was as follows:
"This was an action of ejectment which came up on a writ of
error to the Circuit Court of the United States for the District of
Ohio. One of the questions in dispute on the trial of the cause
below was the boundary line between the lands of the plaintiff and
defendant. Surveys had been made of the premises
Page 31 U. S. 206
in dispute according to the pretensions of each party. These
surveys, with the explanatory depositions taken on the ground, were
placed on file and used in evidence on the trial. The jury, instead
of a verdict according to the claim of either party, found an
intermediate line. Their verdict was in these words,
viz.,"
" We the jury do find the defendant guilty of the trespass in
the plaintiff's declaration mentioned, and do assess the
plaintiff's damages to one cent, and that the plaintiff do recover
of the defendant the land described as follows,
viz.,
beginning at the stone planted in Spencer's Orchard, designated on
Looker's Map (referring to the survey given in evidence), by the
letter B., thence running in a northwesterly direction to a point
in Dock's line, one hundred and twenty-four poles eastwardly on
Dock's line, from the point marked D. on Looker's Map, a hickory
and dogwood; thence westwardly with Dock's line one hundred and
twenty-four poles to the hickory and dogwood aforesaid; thence
running in a southwestwardly direction with Taliaferro's line to
the place of beginning."
"By reference to Looker's map or survey on file, the boundary
here marked out by the jury was capable of being reduced to
certainty. The counsel for the plaintiff below objected against the
verdict's being recorded and moved the court to instruct the jury
to find a general verdict of guilty for the plaintiff. The court so
instructed the jury, saying 'the plaintiff would take possession at
his peril.' The jury accordingly found a general verdict for
plaintiff. To this instruction and opinion of the court the
defendant excepted, and brought this writ of error to reverse the
judgment. "
Page 31 U. S. 210
MR. JUSTICE STORY delivered the opinion of the Court.
The original action was an ejectment brought by the defendant in
error against the plaintiff in error, and the declaration (which
contains several counts) describes the land demanded by specific
metes and bounds. At the trial, the jury found a verdict in the
following terms.
"We, the jury, find the defendant guilty of the trespass in the
plaintiff's declaration
Page 31 U. S. 211
mentioned, and do assess the plaintiff's damages to one cent,
and that the plaintiff do recover of the defendant the land
described as follows,
viz., beginning at the stone planted
in Spencer's Orchard designated on Looker's Map (referring to the
diagram and report of the survey in court) by the letter B.; thence
running in a northwesterly direction to a point in Dock's line, one
hundred and twenty-four poles; eastwardly on Dock's line from the
point marked D. on Looker's Map, a hickory and dogwood, thence
westwardly with Dock's line one hundred and twenty-four poles to
the hickory and dogwood aforesaid; thence running in a
southwesterly direction to Taliaferro's line to the place of
beginning."
The counsel for the plaintiff then moved the court to instruct
the jury to find a general verdict, and thereupon the court did
instruct the jury to find a general verdict, saying that the
plaintiff would take possession at his peril, which general verdict
was found by the jury accordingly, and to this instruction the
defendant excepted. Other exceptions were taken in the progress of
the trial, but they have been abandoned at the argument, and the
only question presented for our consideration is upon the
instruction already mentioned.
From the survey ordered by the court, as well as from the other
proceedings and evidence in the cause, it abundantly appears that
the case was one of conflicting titles, and the controversy was
principally as to boundaries. The verdict of the jury, as
originally found, was for part only of the land sued for in the
ejectment, fixing upon an intermediate line of boundary different
from that asserted by either party. It was therefore equivalent to
a verdict finding a part of the tract of land sued for in favor of
the plaintiff and the residue in favor of the defendant. In other
words, that the defendant was guilty of the ejectment as to a part,
and not guilty as to the residue of the land described in the
declaration.
The real question, then, before the Court is whether the
plaintiff, upon the proof of a title to a part of the premises sued
for in the ejectment, is by law entitled to a general verdict for
the whole of the premises sued for. That the action of ejectment is
a fictitious action and is moulded by courts to subserve the
purposes of justice in a manner peculiar to itself is admitted, but
its professed object is to try the titles of the parties
Page 31 U. S. 212
and the jury is bound to pass upon those titles as they are
established by the evidence before it. It therefore does no more
than its duty when it finds a verdict for the plaintiff according
to the extent and limits of his title as it is proved by the
evidence. It is equally its right so to do, since it is
comprehended in the issue submitted to their decision. If,
therefore, it find by its verdict according to the truth of the
case that the plaintiff has title to part only of the premises in
the declaration, and describes it by metes and bounds, and that so
far the defendant is guilty, and as to the residue, finds the issue
for the defendant, such a verdict in point of law would seem to be
unexceptionable, and if so, the judgment following that verdict
ought to conform to it, and if it should be a general judgment for
the whole premises demanded in the declaration, it would be
erroneous. Such, upon principle and the analogies of the common
law, would be the just result, and the authorities clearly
establish the doctrine, and it is confirmed as a matter of practice
by the best text writers on the subject. Adams on Ejectment 294.
Runnington on Ejectment 432. Bac.Abridg. Ejectment, F. G. Thus in
Mason v. Fox, Cro.Jac. 631, where in an ejectment the jury
found the defendant guilty as to part of the premises in the
declaration and not guilty as to the residue, all the judges were
of opinion that the judgment ought to conform to the verdict, for
it was consequent upon the verdict, but that an entry of a general
or variant judgment was not a misprision of the clerk, and
amendable even after error brought. In
Denn d. Burgess v.
Purvis, 1 Burr. 326, the plaintiff sued for a moiety of a
certain parcel of land, and had a verdict for one-third part of the
premises, and the question was whether in such a case the plaintiff
could recover for a less undivided part than he sued for. The court
held that she could, and that she was entitled to a judgment for
the one-third. Lord Mansfield on that occasion said the rule
undoubtedly is that the plaintiff must recover according to his
title. Here she demanded half, and she appears entitled to a third,
and so much she ought to recover; so if you demand forty acres, you
may certainly recover twenty acres; every day's experience proves
this. And he added that the case of
Abbott v. Skinner, 1
Sid. 229, was directly in point. In 2 Roll. Abridg. tit. Trial,
704,
Page 31 U. S. 213
pl. 22, there is a case where an ejectment was brought of a
messuage, and it appeared in evidence and was so found by the
verdict that only a small part of the messuage was built by
encroachment on the lessor's land, not the residue. And the
plaintiff had judgment for the parcel accordingly.
Taylor v.
Wilbore, Cro.Eliz. 768. These authorities (and the American
authorities cited at the bar are to the same effect) demonstrate
that the plaintiff is entitled to recover only according to his
title, and that if he shows a title to part only, he is entitled to
have a verdict and judgment for that part, and no more. If this be
the true state of the law, then the jury was right in its original
verdict, and the instruction of the court that it should find a
general verdict (the plaintiff having established a title to only a
part of the land) was erroneous.
But it has been argued that such a general verdict under such
circumstances is a matter of mere practice, and involves no
inconvenience or repugnancy to the general principles of law,
because the plaintiff must still at his peril take possession under
his executor upon a general judgment on such verdict, according to
his title. That the whole proceedings in ejectment are founded in
fictions, and the court will in a summary manner restrain the
plaintiff if he takes possession for more than his title, so that
no injustice can be done the defendant. And certain authorities
have been relied upon in support of these suggestions. But in what
manner can the court, in a case circumstanced like the present,
interfere with the plaintiff in taking possession. If the special
finding of the jury in the case of interfering titles on a question
of boundary, which may and indeed usually does involve a comparison
of the conflicting testimony of witnesses and other parol evidence,
is to be set aside and disregarded, there is nothing upon the
record to guide the plaintiff in regard to the extent of his title
in taking possession, and he must be at liberty to take possession
according to his own view of the extent of his title; nor can the
court have in such a case any certain means to interfere upon a
summary application to redress any supposed excess of the
plaintiff, for that would be in matters of fact to usurp the
functions of a jury and to re-try the cause upon its facts and
merits without their assistance. It might be different in a case
where the plaintiff's title, as he proved it at the trial, was
Page 31 U. S. 214
upon his own showing, less than the lands of which he had taken
possession, for that would involve no examination or decision upon
conflicting matters of fact, and after all, what could this be but
an attempt, indirectly to do that justice between the parties which
the original verdict sought to do directly, and in a manner
entirely conformable to law?
As to the authorities relied on to sustain the practice of
entering a general verdict, they do not in our opinion justify the
doctrine for which they are cited. The language cited from Adams on
Ejectment (p. 297) has been misunderstood. It does not mean that
where the plaintiff obtains a verdict for a part of the premises
only, he is entitled to a general judgment for the whole premises
sued for, for that would be inconsistent with what the author has
said in a preceding page (p. 294), [
Footnote 1] but only that the same form of entering the
judgment for the parcel recovered is adopted as in cases where the
whole is recovered, as for example if the plaintiff declares for
forty acres in it, and he recovers only twenty acres, his judgment
must be for the twenty acres, and it is at his peril that he takes
out execution for no more than he has proved title to, since
otherwise his execution would be bad, as not conforming to the
judgment. [
Footnote 2] The case
of
Cottingham v. King, 1 Burr 621, was the case of a writ
of error from Ireland, and the only question was whether the
declaration, which was for five thousand messuages, five thousand
cottages, &c., a quarter of land, &c., was not void for
uncertainty, a general verdict having been given for the plaintiff.
One objection was that the declaration was too uncertain to enable
the sheriff to deliver possession, to which Lord Mansfield replied
that in this fictitious action the plaintiff is to show the
sheriff, and is to take possession at his peril of only what he was
entitled to. If he takes more than he has recovered and shown title
to, the court will in a summary way set it right. Now it is plain
that his lordship was here addressing himself to a case where the
declaration was general and the verdict was general for the whole
premises, and not to a case where there was a verdict for a
specified parcel only of the premises. In the case
Page 31 U. S. 215
put, the judgment would be general and the execution would
conform to it, and therefore if the plaintiff took possession
beyond his own title established at the trial, the court might
interfere in a summary manner to prevent such a general recovery
from working injustice. The same doctrine was afterwards held in
Conner v. West, 5 Burr 2672. But neither of these cases
has any tendency to show that upon proof of title to part of the
premises, the plaintiff is entitled as a matter of right to a
general verdict and judgment for the whole premises in the
declaration. Such a point was never argued nor considered by the
court.
The case of
Knouns v. Lawall, Lessee of Grayson, cited
from 2 Bibb 236, approaches nearer to the present. Without meaning
to express any opinion as to the correctness or incorrectness of
the decision in that case, it is sufficient to say that it is
distinguishable from the case now before us. In that case the court
held the special finding of the jury void for uncertainty and
rejected it as surplusage, and then considered the finding of the
jury as a general verdict for the plaintiff, upon which he might
properly have a general judgment. No such objection occurs against
the special finding in the present case, and we may decide it
without touching the authority of that decision.
Upon the whole our opinion is that the instruction of the
circuit court was erroneous. It was not a mere matter of practice,
but one involving essential rights of the defendant.
The judgment is therefore reversed and the cause is to be
remanded to the circuit court with directions to award a venire
facias de novo.
[
Footnote 1]
See also Adams Eject. App. No. 34, where the form of a
judgment for a parcel is given, and a judgment for the defendant
for the residue.
[
Footnote 2]
See Far. & Denn., 1 Burr. 362, 366.
