# M'Arthur v. Porter

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United States Supreme Court
31 U.S. 205
M'Arthur v. Porter
ERROR to the circuit court of the United States for the district of Ohio.
The case agreed by the counsel for the plaintiffs in error and for the defendants in this court, was as follows:
'This was an action of ejectment which came up on a writ of error to the circuit court of the United States for the district of Ohio. One of the questions in dispute on the trial of the cause below, was the boundary line between the lands of the plaintiff and defendant. Surveys had been made of the premises in dispute according to the pretensions of each party. These surveys, with the explanatory depositions taken on the ground, were placed on file and used in evidence on the trial. The jury, instead of a verdict according to the claim of either party, found an intermediate line. Their verdict was in these words, viz.
We the jury, do find the defendant guilty of the trespass in the plaintiff's declaration mentioned, and do assess the plaintiff's damages to one cent; and that the plaintiff do recover of the defendant the land described as follows, viz. Beginning at the stone planted in Spencer's orchard, designated on Looker's Map (referring to the survey given in evidence), by the letter B., thence running in a north-westerly direction to a point in Dock's line, one hundred and twenty-four poles eastwardly on Dock's line, from the point marked D. on Looker's Map, a hickory and dog wood; thence westwardly with Dock's line one hundred and twenty-four poles, to the hickory and dog wood aforesaid; thence running in a south-westwardly direction with Taliaferro's line to the place of beginning.'
'By reference to Looker's map or survey on file, the boundary here marked out by the jury was capable of being reduced to certainty. The counsel for the plaintiff below objected against the verdict being recorded, and moved the court to instruct the jury to find a general verdict of guilty for the plaintiff. The court so instructed the jury, saying 'the plaintiff would take possession at his peril.' The jury accordingly found a general verdict for plaintiff. To this instruction and opinion of the court the defendant excepted, and brought this writ of error to reverse the judgment.'
The case was argued by Mr Vinton and Mr Doddridge, for the plaintiff in error; and by Mr Ewing, for the defendant.
Mr Vinton, for the plaintiff.
The plaintiff below having title, in the opinion of the jury, to a part of the land claimed by him, it is admitted they had a right, if they chose, to find in his favour a general verdict of guilty. And in that case he would have taken possession at his peril of more than he was actually entitled to possess. But the jury, instead of a general verdict, thought proper to find a verdict for so much only as the plaintiff had title to.
Had they a right so to find? and if they had, is it not plain the court had no power to deny its exercise?
Where a verdict is rendered for part only of the premises demanded, the part found must be described with certainty: but numerous authorities show that the jury may find a part. Gilbert's Law of Ejectment, 200; Pemble v. Stearne, Raymond's Rep. 165; 1 Institute, 227; Cro. Jac. 113; Siderfin, 232; Cro. Jac. 631; 6 Munford, 25; 1 Mun. 162; 17 Sergand Rawle, 431; 16 Serg. and Rawle, 245; 17 Serg. and Rawle, 393.
Gilbert, in his Law of Ejectment (page 61), says, 'if an ejectment is brought for an acre of land, by metes and bounds, and the jury find half an acre, without specifying metes and bounds, the verdict is bad; because the sheriff cannot deliver possession.' The authorities cited above clearly establish the right of the jury to find a part of the premises claimed. It is, emphatically, the duty of the jury to find facts: but by the interposition of the court, in this case, they were restrained, and that office was vertually taken out of their hands.
A leading object of judicial investigation is to reduce disputed and uncertain facts to certainty. But in a question of disputed boundary, it is obvious that a general verdict, without describing the dividing line, or other specification, leaves the parties precisely where they began, and establishes nothing. And if in such a case the plaintiff has a right to demand at the hands of the jury a general verdict, it is clearly not practicable to try a question of boundary by the action of ejectment. A position which, it is presumed, no one will attempt to maintain.
The court, in their instruction to the jury, appear to have fallen into an error in the application of the rule of law to be met with in the books, 'that the plaintiff will take possession at his peril.' On examination it will be found it is used for a different purpose than that to which it is to be applied in this case. It had its origin in this way.
Anciently, in the action of ejectment, great particularity of description in the declaration was required. See Cottingham v. King, 1 Burr. 629. Many judgments were reversed for want of a specific description in the declaration of the premises demanded. But when the action underwent the modifications that placed it on its present footing, it was held that a general description of the premises was sufficient. But to prevent the plaintiff from taking advantage of the uncertainty of his declaration, by going into possession of more land than he was entitled to; the doctrine was established, 'that he took possession at his peril of more than he had actually recovered.'
In all the cases where the courts have holden this language, it will be found that exception had been taken to the sufficiency of the description of the premises in the declaration, after a general verdict. The above cited case of Cottingham v. King is a leading case in point. This principle, therefore, is resorted to, to heal or cure the uncertainty of the declaration, and is not applicable to the verdict. If a verdict is uncertain, the judgment is not rendered upon it and the rule applied to help out the verdict; but the verdict is set aside, or judgment reversed, and a venire de novo awarded. Clay v. White, 1 Mun. 162; Gregory v. Jackson, 6 Mun. 25; Martin v. Martin, 17 Serg. and Rawle, 431; 16 Serg. and Rawle, 245: and see also the extract above from Gilbert's Ejectment. In the case of Gregory v. Jackson, which was an ejectment for one thousand acres of land, and a verdict for four hundred, part of the premises, without designating the boundaries-error was brought after judgment-the doctrine now contended for, was strongly insisted upon in argument, and overruled:-the judgment was reversed and a venire awarded. There are many instances to be found of verdicts similar to that tendered by the jury in this case. The verdict in the case of Green v. Watrous, above cited, is of that description.
In the case of Hopkins v. Myers, 1 Constitutional Court's Rep. 56 (South Carolina), the similitude of the verdict, even in its form, to the one in the present case, is very striking.
The verdict in that case was sustained, and is in these words, viz. 'We find for the plaintiff, with one dollar damages. We also find that the old hedge row beginning at the river, and a line running along the same to its termination; and a line to be drawn from thence, so that it will intersect the course of an old line, surveyed by A. B. Shark in the year 1813, in the centre of the gut, next to the river, and thence along said line until its intersection with the tract of land said to belong to Railford, is the dividing line between the parties.'The practice, as stated by Adams in his Treatise on the Action of Ejectment, and relied upon by the defendant in error, will not sanction his interference with the verdict. He says (page 297), 'if plaintiff obtain a verdict for the whole premises demanded, the entry of the judgment is, that he recover his term in the premises aforesaid, or that he recover possession of his term aforesaid. And this form is also used where a moiety or other part of the premises is recovered; as for example, when the plaintiff declares for forty acres in A. and recovers only twenty. And it is at the lessor's peril, that he take out execution for no more than he has recovered title to.'
This authority does not show that, in the example put of a verdict for twenty acres, such finding of the jury may be disregarded or set aside, and a general verdict directed to be found in its stead; but it proves that upon such a verdict the plaintiff may take a judgment to recover his term in the premises; and since he is restrained from taking out execution for more than was found by the verdict, it is quite immaterial whether the judgment, in its form, is general or special. The verdict in either case is the guide to the sheriff to direct him how to deliver possession, Gilbert's Evidence, 109; Conner v. West, 5 Burr. 2673; Watrous v. Green, 17 Serg. and Rawle, 393; Gilbert's Ejectment, 61; Cro. Jac. 631.
If, in the present case, the plaintiff below had permitted the verdict tendered by the jury to be recorded, and had taken a judgment for his term generally, it would have been liable to no exception. The defendant would have had no cause of complaint, since execution could issue for the part only found by the jury and described in their verdict.
But now he has cause to complain, since there is no restriction upon the plaintiff in taking out execution for, and going into possession of all he ever demanded.
Mr Ewing, for the defendant in error, contended, that it was the duty of the jury to find a general verdict: unless with the consent of the parties a special verdict could not be given. The plaintiff in an ejectment who recovers, takes possession under the direction of the court, and this he does at his peril. A reference to the notes of the judges who presided at the trial will show the extent of the recovery, and regulate the proceedings of the party.
The only question in the case is, whether the judgment entered is erroneous, or whether a general judgment should have been entered on the finding of the jury. Cited Adams on Ejectment, 297; 2 Bibb's Reports, 236.
Mr Doddridge, in reply, argued, that there was a material difference between an action of ejectment to try title, and that in which he whole question was one of boundary. The case cited by the counsel for the defendant in error, from Bibb's Reports, was of the former character, and was therefore not applicable to the question before the court. That case is also at variance with all the cases referred to in the opening argument for the plaintiff in error. The distinction is well known in England, and it is one which must necessarily arise under the Virginia land system. This system involves, in most cases, questions of boundary.
The action of ejectment is a creation of courts, and is to be moulded to meet the justice of the case. The practice under it in Virginia, is different from that of England.
The order of survey is a material proceeding in Virginia in the action of ejectment; and it is made an order in the cause. It is analogous to a view in England; and the survey so made becomes a part of the issue, presenting the very question which is to be decided by the jury. The witnesses are called by the surveyor before him, and he locates the bounds of the land.
The order of survey and return becomes a part of the record, and the verdict of the jury is usually entered on the back of the survey, for the express purpose of showing what has been recovered.
Mr Justice STORY delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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