McFeely v. Vantyle ( 1825 )

Opinion of the court, by

Judge Burnet :

The second, third, and fourth reasons do not require to be particularly notice. They either relate to matters not presented by the pleadings, or to such as should have been noticed at an earlier stage of the proceeding, and in a different form. The first and fifth reasons assign the omission of an avertment, that the line, and the quantity of land to be conveyed, had been agreed on by the parties. These objections resolve themselves into one; for as the course and distance of all the lines are given, except one, which is *to terminate at Lawrence’s line, it follows, that fixing the course of that line must settle the quantity of land to be conveyed ; but a reference to the record will show that the defendant has supplied the omission by his second plea, which puts that matter distinctly, though informally, in issue, and as that issue was found for the plaintiffs, the fact must have been proved to the satisfaction of the jury.

The contract is drawn with a want of technical precision, though the meaning of the parties can be sufficiently ascertained. .The pleadings are informal throughout, as well on the part of the defendant, as of the plaintiff. The title set out in the declaration appears to be a good one, but it is defectively stated. The substance of the contract is given correctly. The difficulty arises from the want of proper averments in the declaration. The defendant might have demurred, but he did not see proper to take that course. He chose rather to supply the defect, and rest on the evidence. After having traversed the payment and tender, he has informally put the agreement, as to the line, in issue; the whole of that subject was therefore before the jury. It is true that the defendant could not convey till it was ascertained what he was bound to convey; but it is equally true, that the second issue could not have been found for plaintiff, unless that matter had been ascertained. by the evidence at the trial. The defect, therefore, was supplied by the plea, or cured by the verdict. Whatever might have been the result of a demurrer, we do not feel at liberty, un der existing circumstances, to arrest the judgment.^†

† NotE by the Bditor. — See also ii. 204; xiv. 127; xv. 138.