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Opinion.— From this brief statement of the pleadings we think it is sufficiently obvious that the finding of the jury was not unwarranted by them. The facts found were fairly putin issue and they were proper subjects of consideration. The plaintiffs sued for their mother’s part of this land, and that it might be partitioned to them. Whether they were entitled to it. and how they were entitled to it in this land, who else were owners of the land and the equities they had, whether their father’s administrator or his heirs had any
*693 remaining interest in it, or whether the sales he had made exhausted his share of it, were questions necessary, to be determined to enable the court to grant the relief prayed for. And assuming, as we must assume in the absence of a statement of facts, that the testimony sustained the. findings, the judgment of the court upon it is not only unobjectionable, but the very judgment which should have been rendered. The judgment is for the defendants claiming under deeds from Thomas Barron, and for the plaintiffs against Taylor, administrator of Thomas Barron, and the heirs of his second wife for the land in controversy, excepting the unsold portions, and decreeing that “ all the right and title which the estate of Thomas H. Barron ever had in said land remaining unsold by him be divested out of him and invested in said plaintiffs.”How the plaintiffs, as between themselves, do not ask partition of this land, and if they did it is not appellant’s business to complain that they did not get it. What they asked was that their mother’s share be set apart to them, and what the judgment effects is that it is so set apart to them. The facts developed upon the trial showed, and the verdict of the jury established, that partition had, in effect, been made of the interests of their father in the land by his conveyance to the defendants or their grantors; that the remainder belonged to the plaintiffs, whether much or little, valuable or otherwise, and it would have been an idle thing to have ordered a writ of partition to issue. The court had ample power to determine by its judgment and set apart to them their land.
The second objection urged, that the verdict and judgment are uncertain, admits of a very brief reply. The administrator of Barron only prosecutes this writ of error. Without doubt the verdict and judgment are certain as to the estate he represents. He has no interest in the land and is not concerned in any difficulties which may arise in executing the judgment between the other parties to it.
So far as Stephen Lott is concerned in the judgment, he
*694 is embraced in the general term plaintiffs; he recovers his costs; and if his name, in copying them into the judgment entry, by oversight has been omitted, he can have it amended. The plaintiff in error is in no way affected by this omission.Affirmed.
Document Info
Docket Number: No. 3970
Citation Numbers: 2 Posey 689
Filed Date: 7/1/1879
Precedential Status: Precedential
Modified Date: 11/14/2024