Crawford v. Masters.

Connor, J.,

after stating the facts: The plaintiff alleged that be was the owner of the lot in controversy and that defendant was in the wrongful possession. Both these aver-ments defendant denied. Pending the trial defendant admitted that he was in possession of that portion of the lot in respect to which there was a controversy. With this admission there was but one issue arising upon the pleadings —that of title. It is elementary that the issues should be directed to the matter alleged on the one side and denied on the other. If the judge, in bis discretion, deems it proper, be may, in addition to the issues, submit questions to the jury pertinent to the matters in controversy, but he is not compelled to do so and bis refusal is not reviewable. Clark’s Code, sec. 393, and cases cited. In an action for the recovery of land if the defendant wishes to disclaim as to any portion of the locus in quo and put in issue the title to only a specific portion, be should do so in bis answer. If be denies the title to the entire boundary and the issue is decided against him, the judgment will be signed in accordance with the allegation in the complaint, unless the jury shall by their verdict restrict the boundary of the recovery. Whatever may have been the rule in the action of ejectment, as it prevailed prior to the adoption of our Code of Procedure in regard to the form and effect of the judgment, it is well settled that in the civil action for the recovery of real estate, the judgment must follow and conform to the verdict in designating the extent of the recovery, and must be rendered for the premises described in the complaint. Sedg. & Wait, Trial Title, sec. 525.

In this record, the plaintiff alleged ownership of a lot, enclosed with another lot conveyed in the same deed. The boundaries were marked by a fence. There was a controversy as to the location of the fence. His Honor instructed the jury that the burden was on the plaintiff to establish, by a preponderance of the evidence, bis claim and right of pos session up to the boundary contended for; that he must satisfy them as to the true location of his boundary and fence, set out in his deed, as well as his possession within the same; that if they found by the greater weight of the evidence that the fence was at the point contended for by the defendant (explaining by reference' to the map the respective contentions), they should answer the issue “No.” The finding upon the issue in view of the admission settled the matter in controversy, and entitled the plaintiff to judgment according to the description of the lot in his complaint. His Honor’s charge was full and clear, both in respect to the subject matter of the litigation and the testimony bearing upon the respective contentions of the parties.

We have examined the instructions asked by the defendant and think that, in so far as they were correct propositions, they were given by the judge below. The agreement between Whitson and Masters, to the introduction of which the defendant objected, does not appear to us to have much, if any, bearing upon the issue. We cannot see how its admission prejudiced the defendant.

We have examined the entire record in the light of the defendant’s exceptions and brief, and find no error. The case was fairly tried and the judgment was drawn in accordance with the pleadings and verdict.

No Error.