Roe v. Doe ex dem. Adams

By the Court,

Lumpkin, J.,

delivering the opinion.

The lease under which the recovery was had in this case having expired before the trial, of course no recovery could be had under it without amending. The verdict, therefore, was contrary to the evidence. This objection, we admit, is purely technical; but as this is a fight for a female, and counsel contends for the extreme rights of his client, he is entitled to the benefit of the objection.

But there 5s a more substantial difficulty in this case, resulting from the uncertainty of the verdict.

Plaintiff sues for 47 acres of land, composed of part of lot No. 13 and fractional lot No. 3. The 47 acres described in the declaration does not include the whole of fractional lot No. 3, which contains upwards of 80 acres. Now, to the alleged trespass upon plaintiff's premises, defendant pleads the general issue, not guilty. The premises in dispute, then, is the 47 acres of land described in the writ. The .jury, by their verdict, found If- acres, and describe it as a part of lot No. 3. Now this may be true, and yet the parcel of land described in the verdict may be outside of that part of lot No. 3 which composes, in part, the 43 acres claimed by the plaintiff.

How could the Court enter up judgment and direct a writ of possession to issue upon this verdict? Had the jury found that the parcel of land embraced in their verdict was a part of the premises in dispute, it would have been sufficient.

It is laid down in Lee vs. Tapscott, 2 Wash., C. C. Rep., 170, that in ejectment the verdict being for the plaintiff tor the land laid down in the survey made in the cause, as comprehended within certain lines as described by the jury, a judgment that the plaintiff recover his term in and of the lands mentioned in the declaration, is erroneous.

It is not enough that the lands are sufficiently identified by the verdict as to enable a surveyor to locate the premises, but the verdict itself must be so certain as to enable the Court to know in advance of a survey, that it is awarding judgment for the premises in dispute. Otherwise, the sheriff might be guilty of a trespass for executing the judgment.