Davis v. Judge , 44 Vt. 500 ( 1872 )

The opinion of the court was delivered by

Peck, J.

The defendant excepts to the ruling of the court in admitting the deeds, one marked M. from Elijah B. Wales to George W. Esterbrooks ; the other marked N. from said Wales, to John B. Simonds, both dated August 6, 1850. The dispute on trial was as to tbe division line running eastwardly and west-wardly between tbe land of tbe' plaintiff and that of tbe defendant. It appears by the exceptions that tbe plaintiff’s land is a portion of wbat was originally the Ball land, lying adjacent to and bordering on tbe defendant’s land — tbe residue of tbe Ball tract of land extending farther west than either the plaintiff’s or the defendant’s land ; and that the defendant’s land is a part of what was originally the Hotchkiss land;. the residue of the Hotchkiss tract of land extending farther west than the land of either of these parties, and bordering on tbe Ball land. Hence an important question was, as to the location of the line between the Ball land and the Hotchkiss land. There is no dispute but that the post standing in the front-yard fence between the parties is in the division line. The important question was, to what point this division line ran in extending westwardly from this post; the plaintiff claiming the line in its course westwardly bore a little more southerly than the defendant claimed it did. The evidence in the case, introduced by the plaintiff without objection, tended to show that the division line between the Ball land and the Hotchkiss land was a straight line, not only between the land now owned by the plaintiff and that now owned by the defendant, but in the same course along past the land conveyed by Alanson Stone to Wales, and by Wales conveyed to Esterbrooks, and to Simonds, severally, by the deeds objected to by the defendant. It appears from evidence not objected to, that this land so deeded to Wales was part of the Hotchkiss land lying west of the defendant’s land, and bordering on the Ball land lying north. The evidence introduced before these two deeds were introduced, tended to show that when Stone conveyed this land to Wales, he owned, in connection with it, the land in question east of it, which the defendant now owns; the defendant’s title coming through a subsequent conveyance from said Stone. As the defendant claims through Stone, it was competent for the plaintiff to show where Stone, while he owned the defendant’s land, and that deeded to Wales, claimed the division line to be between the Hotchkiss land and the Ball land, being the original line between the lands of the parties to this suit. But it is objected to these deeds that there was no evidence that the defendant or his grantors ever recognized or had notice of the particular division made by Wales by these two deeds. But it is not necessary that there should be any such evidence. The evidence is, that the description of the land in these deeds was made by measurement from the muniment set by Alan-son Stone, as the line between this land and the Ball land at the time he conveyed to< Wales ; and these two deeds from Wales were evidence, in connection with the other evidence, to enable the surveyors to find and locate the line as fixed and recognized by Alanson Stone ; and were properly admitted and used for that purpose.

The motion in arrest for the insufficiency of the declaration is based on an alleged uncertainty in the description of the premises sought to be recovered. The description in the declaration is, “ bounded on the north by the street laid out by J. H. and W. H. Esterbrooks, on the east by south main street, on the south by lands of the said Thomas Judge, and on the west by lands of George Fisher,” and being in the east village of Brattleboro. The declaration supposes the defendant to be in possession of land oí the plaintiff lying north of and adjoining’the defendant’s land. But the land which the plaintiff by his declaration claims to own and recover, being bounded on the south by the defendant’s land, the declaration leaves it uncertain to what extent or to what limit the plaintiff claims. It is true he claims to recover to the division line between the land of the plaintiff and the land of the defendant ; but where that line is, is the very question in dispute ; and the plaintiff by his declaration does not show where he claims it to be. Hence a verdict and judgment, that the plaintiff recover the premises described in the declaration, only established the plaintiff’s title and right of possession of the premisesextending south to the defendant’s land ; but where that boundary is, the record furnishes no means of determining. It is impossible to ascertain to what limits the plaintiff showed title, or for how much or to what extent the recovery was had. The action of ejectment by our statute partakes of the nature of a real action, and the judgment on the merits is conclusive of the title between the parties and their heirs and assigns ; and greater certainty of description is necessary than would now be required in ejectment at common law, where the action is a mere possessory action and the judgment not conclusive of title. The premises should be so described that the defendant may be able to ascertain for what he is sued, and that the record of the recovery may enable the plaintiff to point out to the sheriff, who serves the writ of possession, the land recovered, and that the record may furnish evidence of the limits to which the title is established by the judgment. The declaration does not answer these requirements. Clark, v. Clark, 7 Vt., 190. Even if the deeds in the chain of title of the parties respectively could be referred to in aid of the record of the judgment, they would not supply the defect. The deeds in the chain of title of the respective parties have not been furnished us, but it is conceded that they all bound the land between the parties as the declaration does, each bounding the land by the land of the other. It is claimed that the special finding of the jury, that they found the line indicated by the blue dotted line on the plaintiff’s plan to be the true line, cures the defect in the declaration. But the plan will constitute no part of the record ; and even if it could be incorporated into the record, it does not sufficiently appear what facts the jury found as to the location of the blue dotted line, to enable it to be found and located on the land; for what the exceptions show the plaintiff claimed, and what the evidence tended to show as to its location, may or may not have been found to the full extent by the jury.

The judgment of the county court, overruling the motion in arrest and rendering judgment for the plaintiff, is reversed, but we do not proceed as we might to render final judgment arresting the judgment, but on motion of the plaintiff remand the caseto the county court to enable the plaintiff to move that court for leave to amend.