Rains' Heirs v. McMills ( 1855 )

Hemphill, Ch. J.

This is a suit for specific performance, by John McMills, and his wife, Haney McMills, formerly wife of John A. Ursery, deceased, and Ann Ursery, the daughter of the said John A. Ursery.

The judgment, was for plaintiff, and the objection is, that the verdict was contrary to the evidence in this, that the jury found, in effect, that John A. Ursery bought of Presley P. Rains the land described in the petition, whereas the proof was that the land, described in the petition, was a different tract from that actually purchased. The land was described in the petition, as bounded by the lands of certain individuals, and as also the place of residence of John A. Ursery-, deceased, &c. The proof established pretty clearly, that the land described as having certain boundaries was not the place of residence of John A. Ursery. This conflict would of course produce embarrassments, and the jury express their difficulties in identifying the land, but their conclusion, in effect, was, that the Ursery place was the land actually purchased ; and they further found the land to be the same as described in the plaintiff’s petition. Now, the Ursery place was averred to be the land purchased in the petition, and the finding that the place bought and that described is the same is not inconsistent with itself, or with the facts in evidence. The boundaries were misdescribed, and if the land, as described in the petition, could be identified only by the boundaries, then the finding would be wrong. But the boundaries are not the principal or most distinctive objects of the land, as set forth in the petition. The improvements of Ursery were the most notorious calls, and the hundred acres, including these improvements, can very properly be said to be the land described in the petition. This was the land which the jury found, from the evidence, to have been purchased, and their further finding, that the land was the same as described in the petition, is, as before said, consistent with itself and with the facts in proof.

Judgment affirmed.