#### *Koiner v. Rankin’s Heirs.

July Term, 1854,

Lewisburg.

i. Writ of Right—Adverse Possession—What Tenant Hay Show.*—In a writ of rig]it the tenant, to defend his possession under the statute of limitations, may show a possession anterior to his patent: and to show color ot' title may introduce the entry and survey upon which his patent issued. But as there can be no adversary possession against the commonwealth, he cannot show possession further back than the senior grant.

2. Patent upon Inclusive Survey -Evidence by Tenants Claiming under.—The effect of a patent issued upon an inclusive survey, and the right of the tenant claiming- under it to show possession under color of title, is the same as in other grants. He may give in evidence the entries for the different tracts embraced in the inclusive survey, the order of court authorizing the survey, and the survey made in pursuance of the order: But he cannot show possession further back than the senior grant.

*212.3. Adversary Possession—Continuity of Possession Necessary.†—To protect himself under the statute of limitations, the tenant must show continued adversary possession for the time of limitation of some part of the land in controversy. Actual possession of a part of his land outside of the .boundaries of the demandant’s elder patent, is not; sufficient.

4. Patented Land—Uncleared—When Subject to Adverse Possession.‡—Whthe patented lands remain uncleared, or in a state of nature, they are not susceptible of adversary possession against the elder patentee, unless by acts of ownership effecting a change in their condition.

S. Writ of Right—Variance between Declaration and Verdict—Effect.§—The quantity and boundaries of the land described in the count and in the verdict vary from each other; but the verdict finds that the land therein described is the tenement mentioned in the count. It is to be presumed that the description given in a count is a mistaken description, and that the land recovered is the land demanded.

This was a writ of right brought in July 1829 in the County court of Augusta, by Joseph Rankin against Robert Koiner, which upon the death of Rankin was revived in the name of his heirs. The count claimed twenty acres of land adjoining the lands of Joseph Rankin and Robert Koiner, beginning at two white oaks corn.er to James Rankin’s land on the wetstone *line, and then describing eight lines *213by course and distance, which upon being laid down on a plat did not close.

The cause was removed to the Circuit court of Augusta, and came on for trial in November 1849. The tenant claimed under a patent founded on an inclusive survey which embraced the land in controversy. He proved an entry by John McDougall for twenty acres of land on the 23d of May 1793, a survey thereon on the 18th of June in the same year, and a patent for it to McDougall dated the 12th of August 1795. He also proved the application by McDougall to the County court for an inclusive survey, which was authorized by the court; and also the survey which embraced the tract aforesaid and three others for which patents had been granted by the commonwealth in 1742, 1772 and 1778: This survey contained six hundred and eighteen acres; and a patent was issued thereon bearing date the 17th of May 1797. He further proved a regular conveyance of this tract of land through several successive conveyances to himself; and that the land in controversy was the land embraced in the patent for twenty acres, dated the 12th of August 1795; and that the true quantity was twenty-three acres one rood and twenty-six poles. The tenant also proved by a witness that he was personally acquainted with the tract of six hundred and eighteen acres, from a period between 1801 and 1804; and he was acquainted with it from information from the year 1797, when McDougall conveyed it to the witness’s father. That witness’s father was in possession of the land when witness became acquainted with it; and it had been held by the successive purchasers under McDougall from that time to the time of the trial. That a part of the land in controversy had been cleared in 1812 or 1813 by the purchaser from his father; and that the taxes had been regularly paid upon it since 1797. *And that Joseph Rankin had never had possession of any part of the land in controversy.

The demandants, to sustain the issue on their part, introduced in evidence a patent from the commonwealth, bearing date the 21st of July 1794, by which there was granted to Joseph Rankin two hundred and ninety acres of land; which it was proved included the land in controversy: And they introduced the will of Joseph Rankin, by which he devised his property to them.

After all the evidence had been introduced, the court, upon the motion of the demand-ants, instructed the jury as follows:

1. If the jury believe from the evidence, that the demandants have the elder patent to the land in controversy, then the effect of the emanation of the junior inclusive patent under which the tenant claims, is no more than the effect of any other patent would be; and only operates as any other patent would do, to give the tenant color of title; which color of title can only serve him in this cause provided he shall have shown, in addition thereto, a continued, actual adversary possession in himself and those under whom he claims, of the land in controversy, for a period of at least thirty years immediately preceding the emanation of the demandant’s writ in this cause.

2. That possession to avail the tenant must have been an actual adversary possession of a part or the whole of the land in controversy; and cannot be acquired by open and notorious acts of ownership short of actual occupation, use or enjoyment.

3. That while patented lands remain uncleared, or in a state of nature, they are not susceptible of adversary possession against the hlder patentee, unless by acts of ownership effecting a change in their condition. No exception was taken to these instructions by the tenant.

*The jury found a verdict for the demandants for twenty-three acres, one rood and twenty-six poles, designating the boundaries thereof by lines, all of which varied from those described in the count: And the court rendered a judgment for the demandants according to the verdict.

After the jury had rendered their verdict, the tenant moved the court for a new trial, on the ground that the verdict was contrary to the evidence; but the court overruled the motion, stating that the only question in the cause was the statute of limitations, the demandants having clearly proved the elder title; and that upon the statute of limitations, if the jury had found for the tenant, they would have done no more than he would have done had he been sitting as a juror; but the court could not consider the verdict as involving such a manifest departure from the evidence as to justify its interference by setting aside their verdict.

At a subsequent day of the term the tenant again moved the court for a new trial, upon the grounds, first, that the jury misunderstood the instruction of the court; and he produced an affidavit of three of the jurors, in which they state that after the argument was closed they had made up their minds to find for the tenant on the statute of limitations, and would have so found but for an instruction of the court, which they understood to be substantially, “That the tenant must have proved an adversary possession of the land in dispute for thirty years prior to the suit, separate and independent from possession for that length of time of the inclusive survey lyhicfa embraced within its limits the disputed land.” That they were satisfied the tenant and those under whom he claimed had actual possession for more than thirty years prior to the institution of the suit of part of said inclusive survey; and if that was sufficient, they were satisfied ‘x'the jury found an improper verdict; but if the law required the tenant to prove actual occupation and improvement of the land in dispute, without reference to it as a part of the inclusive survey, then they thought the verdict correct. The second ground for the new trial was that if the instruction was not misunderstood, the cofirt had misdirected the jury as to the law: Ror *214that .possession under the inclusive survey and patent of any part of the land included therein, was in legal contemplation, possession of the twenty-three acre tract, which was the tract in controversy, although no actual occupation or possession of that tract or any part of it was proved. But the court overruled the motion; and the tenant excepted; embracing the action of the court upon both motions in his exception: And he applied to this court for a supersedeas, which was allowed.

Fultz, for the appellant.

H. W. Sheffey and Michie, for the appellees.

*

Adverse Possession What Junior Patentee Hay Show.—In Cline v. Catron, 22 Gratt. 392, it is said: "It is a well-settled principle that there can be no adversary possession against the commonwealth. But a junior patentee may show that he had possession of the land in controversy prior to the emanation of his patent. under a claim of title, legal or equitable, good or bad; and also, in order to explain the character of his possession anterior to the emanation of the elder patent. But his possession cannot be adversary until the emanation of this elder patent, for it is consistent with the rights of the commonwealth, in whom the legal title resides. After the title passes from the commonwealth to the patentee it instanter becomes adverse to him. Shanks and Others v. Lancaster, 5 Gratt. 110; *Koiner v. Rankin's*Heirs, *11 Gratt. 420."*

Same Nullum Tempus Occurrit Regi. —In Reusens v. Lawson, 91 Va. 244, 21 S. E. Rep. 347, the principal case and Shanks v. Lancaster, 5 Gratt. 110. are cited as authorizing the proposition that the statute of limitations never runs against the commonwealth unless there be an express provision in the statute 10 that effect.

Same—Equitable Title as Basis.—In Hale v. Marshall, 14 Gratt. 497, the court, citing the principal case and Shanks v. Lancaster. 5 Gratt. 110, to support the proposition, said that a court of law never refuses to accept an equitable title as a sufficient basis for an adversary possession on which to make out a defence under the statute of limitations.

Same—How Entry Should Be Made.—In Turpin v. Saunders, 32 Gratt. 34, it is said: “In Dawson v. Watkins. 3 Rob. R. 259-269, Judge Allen, delivering the opinion of the court, said: ‘To operate a disseisin of one having right, the entry should be made under a claim of title with the intention of taking possession, and be accompanied with such visible acts of ownership as from their nature indicate a notorious claim of property in the land. To hold otherwise, would be to establish a principle by which every proprietor of vacant lands might be disseizee) without his knowledge, or even the possibility of protecting himself. ’ The same doctrine is laid down in Taylor’s Devisees v. Burnsides. 1 Gratt. 165. 195; *Koiner v. Hankin's Heirs, 11 Gratt. 420;*Kincheloe v. Tracewells, Ibid. 587, 603: Ewing's Lessee v. Burnet, 11 Peters' R. 41.’'

Same -Essentials.- In Creekmur v. Creekmur. 75 *Va.*435. it. was said: “It is not necessary in the present instance to attempt any general definition of what is meant by ‘adversary possession.’ It is sufficient to say that, according- to the best authorities, a possession to be adverse must be actual, exclusi ve, open and notorious. It must be accompanied with a *bona fl.de*claim of title against the title of all other persons, and it must be continued for the period prescribed by the statutory bar. A mere naked possession without a claim of right, no matter how long continued, never ripens into a good title, but is regarded as being held for the benefit of the true owner. In all cases, a *bona flde,*claim of title is essential. When, however, the actual occupation of land, accompanied with such claim, continues *212for the period prescribed by the statute, the effectis to confer title upon the occupant without reference to the original merits of the controversy, and even against the plainest and most convincing proof of a better original title. *Koiner v. Rankin's*Heirs, *11 Gratt.*420, *426.’’*

On the subject of adversary possession, seethe principal case also cited in Oney v. Clendenin, 28 W. Va. 53; Taylor v. Town of Philippi, 35 W. Va. 560, 14 S. E. Rep. 132. See generally, monographic *note*on “Adversary Possession” appended to Nowlin v. Reynolds, 25 Gratt. 137.

Same—Interlock.—It is now also well settled, that where there is an interference of the patents, so that they lap or interlock, the occupation or residence of the junior patentee upon a part of his tract outside of the interlock does not give him possession of that part of his'tract which is embraced within the limits of the elder patent, but his possession is restricted by the boundary of the elder patent. But, if *he*hap an actual occupation and improvement of a part o'f the interlock, and the elder patentee has actual possession of no part of it, the actual possession of the junior patentee is co-extensive with the limits of his patent, and is exclusive and adversary, and if continued uninterruptedly for the period of limitation, defeats the elder patentee’s right of entry, or his better title, as the case may be. Cline v. Catron, 22 Gratt. 393, citing the principal case; Taylor v. Burnsides, 1 Gratt. 165; Overton v. Davisson, Id*.*211; French v. Loyal Company, 5 Leigh 627. The principal case was also cited in Garrett v. Ramsey, 26 W. Va. 354, for the first part of the proposition above laid down, and in Stull v. Rich Patch Co., 92 Va. 276, 23 S. E. Rep. 293; Garrett v. Ramsey, 26 W. Va, 356, 374, and Ilsley v. Wilson, 42 W. Va. 767, 26 S. E. Rep. 555, for the second part of the proposition above laid down.

On this subject of interlock, see the principal case also cited in Garrett v. Ramsey, 26 W. Va. 357, 362, 377 ; 3 Va. Law Reg. 764, 767, 845 ; 4 Va. Law Reg. 567; monographic *note*on “Adversary Possession” appended to Nowlin v. Reynolds, 25 Gratt. 137.

†

Same-Continuity of Possession Necessary.—“Whenever one quits the possession, the seisin of the true owner is restored, and an entry afterwards by another wrongfully constitutes a new disseisin. The continuity of possession having been broken before the expiration of the period of time limited by the statute of limitations, an entry within the time destroys the efficacy of all prior possession, so that to gain a title under the statute, a new adverse possession for the time limited is required. The tenant cannot sustain his defence of continued adversary possession if, within the period of limitation, the premises have been abandoned by him or those under whom he claims.” Hollingsworth v. Sherman, 81 Va. 674, citing among others the principal case; Taylor v. Burnsides, 1 Gratt. 208, 210; Overton v. Davisson, 1 Gratt. 223; Cline v. Catron, 22 Gratt. 378; Dawson v. Watkins, 2 Rob. 269.

‡

Patented Lands—Uncleared—When Subject to Adverse Possession.—in Harman v. Ratliff, 93 Va. 253, 24 S. E. Rep. 1023, it is said: “Whthelands remain uncleared, or in a state of nature, they are not susceptible of adverse possession against the older patentee, unless by acts of ownership effecting a change in their condition, and to constitute adverse possession there must be occupancy, cultivation, improvement or other open, notorious, and habitual acts of ownership. *Koiner v.*Rankin, *11 Gratt. 420;*Taylor v. Burnsides and Overton v. Davidson, *supra."*

§

 Ejectment—Variance between Declaration and Verdict.— Benn v. Hatcher, 81 Va. 25, 30, was a case of ejectment. In the declaration, the land was described as lyingnorth of a certain road, butin the verdict as south of that road. In all other essential particulars, the verdict minutely followed the declaration. The court, citing the principal case to warrant its decision, held that the description in the declaration must be presumed to be a mistaken one, and that the plaintiffs recovered the land demanded though by a different and corrected description.

See generally, monographic *note on*“Ejectment" appended to Tapscott v. Cobbs, 11 Gratt. 172.

Same—Verdict.—if, in an action of ejectment, the jury And for the plaintiff the land in the declaration mentioned, if the declaration sufficiently described the land to enable the officers to deliver possession, a judgment may be properly rendered on such verdict. It is not void for uncertainty; but, if the declaration had described the land so vaguely as not to enable the officer to deliver possession of the land, the verdict would have been void for uncertainty, and the court should not enter up a judgment on it, but award a *venire de novo.*Williams v. Ewart, 29 W. Va. 667, 2 S. E. Rep. 887, citing the principal case. See also, Hitchcox v. Rawson, 14 Gratt. 526, and *foot-note.*See generally, monographic *note on*"Ejectment” appended to Tapscott v. Cobbs, 11 Gratt. 172.

Verdict—Impeachment by Jurors.—To the point that the testimony of jurors is generally, admissible to support, though not assail, the verdict, see the principal case cited in Bull v. Com., 14 Gratt. 631; Moses v. Cromwell, 78 Va. 676; Zickefoose v. Kuykendall, 12 W. Va. 35. See also, Bull v. Com., 14 Gratt. 613, and *foot-note*there quoted; monographic *note*on “Juries” appended to Chahoon v. Com., *20*Gratt. *733.*

LEE, J.

I think the first instruction given to the jury on the motion of the demandants’ counsel, will not bear the .construction placed upon it by the counsel for the plaintiff in error in this court. He supposes that it confined the tenant to proof of - adversary possession under the grant obtained upon his inclusive survey, and deprived him of the right of going behind that patent, and for the purpose of making out his defence under the statute of limitations, of showing possession under color of title anterior to its emanation. That he •had the right to do so will not be denied. For this purpose he was authorized to give in evidence the entries for the different tracts embraced in the inclusive survey; the order of court authorizing the survey, and the survey made in pursuance of the order; . though as there can be no adversary possession ^against the common- ' wealth, he could not go behind the senior grant. • Shanks v. Lancaster, 5 Gratt. 110. But there is nothing in the terms ’ or in the effect of this instruction, to prevent him from availing himself of all this evidence, if he had chosen so to do. All that it purports to do is to declare the effect of the junior patent obtained upon the inclusive survey, as the foundation for the defence of adversary possession under the statute of limitations; and it informed the jury that its effect was just the same as that, of any other patent, and that it only operated as any other patent would, (if the demandant had shown title under an older grant in himself,) to give the tenant a color of title under which he might, if he could, show an adversary possession sufficient to bar the action under the statute of limitations. That this is strictly correct cannot be doubted. A grant obtained upon an inclusive survey' under the statute, possesses no peculiar or distinctive virtue to support a defense under the statute of limitations, not pertaining to any other grant. For this purpose any grant would equally serve by affording the necessary show or color of title to which the adversary possession- might be referred. Nor is there the slightest ground for supposing that the tenant was restricted in making out his case, to this particular patent. He was at perfect liberty after showing it, to go on and show any other instruments under which he claimed title; whether the claim was a good or a bad title, a legal or an equitable title, (Shanks v. Lancaster, ubi supra,) and make out his possession if he could, under any one or all combined.

But in truth the tenant could not have been prejudiced if he had been restricted to his inclusive patent as the basis of the claim of title under which he held possession, because that patent issued in 1797, and it was not necessary, in order to complete the bar under the statute, to carry back the adversary possession *further than the year 1799. So that if he could make out the necessary thirty years’ adversary possession next before the emanation of the writ, it would have fallen under the date of this patent, and this would have furnished the needful color of title and made out the defense as effectually as if any number of different claims of title had been exhibited.

The instruction to the jury that the possession which would avail the tenant under the statute of limitations must be an actual and continued adversary possession of the land in controversy, or some part thereof, is, I think, strictly correct, nor do I perceive how there can be any objection to it. If the tenant had not had such possession, he could not maintain this defense. The actual adversary possession of the premises in controversy' is the very essence of a defense under the statute of limitations. Its effect-' is to render such possession conclusive in behalf of either demandant or tenant, without reference to the original merits of the controversy, and even against the plainest and most convincing proof of better original title. To say that a party sued for land in his possession is defending himself under the statute of limitations, is exactly equivalent to saying that he is seeking to defeat the action by proving actual adversary possession of the subject in controversy in himself and those under whom he claims, for the period necessary to complete the bar. How he is to make out this possession, whether by proof of actual settlement and occupancy, or of such open, notorious and habitual acts of ownership importing the use and enjoyment of the property, and equivalent to actual occupancy, or by proof of such actual occupation and enjoyment of another portion of the tract claimed by him, of which the disputed premises is also parcel, is a totally different question. This involves other and distinct principles, and especially the enquiry in what sense the rule that *possession of part is possession of the whole, is to be understood, and of what modifications it is susceptible in its application. To this precise question, as I understand the bill of exceptions, it would seem that the attention of the court was not specifically directed. But if it be susceptible of a different construction, and if we' are to understand the instruction as implying that the occupancy and enjoyment by the tenant of a portion of his land other than the parcel in controversy, with whatever claim, could not constitute such a dis*215seizin of the demandant as would enable him to maintain his defense under the statute of limitations, I should still think it strictly correct. The case is one of two patents conflicting in part, occasioning what is called a “lap” or “interlock.” The elder patentee under his grant acquires at once constructive seizin in deed of all the land embraced within its boundaries, although he has taken no actual possession of any part thereof. Clay v. White, 1 Munf. 162; Green v. Liter, 8 Cranch’s R. 229. The junior patentee under his grant acquires similar constructive seizin in deed of all the land embraced by his boundaries, except that portion within the interlock, the seizin of which had already vested in the senior patentee. Clark’s lessee v. Courtney, 5 Peters’ R. 318, 354; Langdon v. Potter, 3 Mass. R. 215.

In this state of the case, if the junior patentee settle upon that portion of the land within the interlock, claiming the whole within his boundary, he therebj' ousts the senior patentee of his constructive seizin, and becomes actually possessed to the extent of his grant. Calk v. Lynn’s heirs, 1 A. K. Marsh. R. 346; West v. Price’s heirs, 2 J. J. Marsh. R. 380; Fox v. Hinton, 4 Bibb’s R. 559. Here possession of part is possession of the whole. But if his settlement be outside of the interlock, there the possession of part is to be construed in reference to the conflict of boundaries, *and with whatever claim it be taken, it gives him possession of that part of the land, only, lying without the interlock. Of that within, he does not thereby acquire the possession. The constructive possession which he would have gained if there had been no conflict, does not take effect; and there is nothing which can serve to overcome the constructive seizin in deed of the elder patentee, and work an ouster. To effect this, there must be an actual invasion of the boundary of the senior patentee, by some act or acts palpable to the senses, and which would serve to admonish him that his seizin was molested. He is of course presumed to know his own boundary, and if that be invaded by plain, open, visible acts of possession on the part of the other, and he submits or fails to assert his right, an ouster will be accomplished, and he shall be said to be disseized. But if the acts be not of the character above indicated, if they amount to a mere adverse claim, however connected with possession of another part of the land, they will not have that effect. The consequence of a different rule, as justíy remarked by Judge Baldwin in Taylor v. Burnsides, 1 Gratt. 165, 196, would be that a man might be disseized of his freehold not only without his knowledge but even without the possibility of his knowing it. See also Buford v. Cox, 5 J. J. Marsh. R. 589.

There is nothing in anjr of the cases cited by the counsel for the plaintiff, in conflict with the opinion above expressed. In the cases of Green v. Liter, 8 Cranch’s R. 229; Clarke v. Courtney, 5 Peters’ R. 319; Bradstreet v. Huntington, Ibid. 402; Taylor v. Burnsides, 1 Gratt. 165; and Overton v. Davisson, Ibid. 211, the possession relied on was within the limits of the opposing claim, and so the question did not and could not arise. In the case of Taylor v. Burnsides, however, Judge Baldwin, in the able and luminous opinion delivered by him, adverts to this question, and expresses *views with which the opinion here advanced will be found to be strictly coincident: and it would seem to be fully supported by numerous cases. Burns v. Swift, 2 Serg. & Rawle 436; Napier’s lessee v. Simpson, 1 Overton’s Tenn. R. 443; Voorhies v. Bridgford, 3 A. K. Marsh. R. 27; Trimble v. Smith, 4 Bibb’s R. 257; Smith v. Mitchel, 1 A. K. Marsh. R. 208; Pogue v. McKee, 3 A. K. Marsh. R. 128; Bodley v. Logan’s heirs, 2 J. J. Marsh. R. 254; Fox v. Hinton, 4 Bibb’s R. 559.

It is objected to the third instruction, first, that it is abstract in its character; second^', that it is not law. That an instruction presents merely an abstract proposition, is certainly a very sufficient reason why a court may refuse to give it: but if given and it state the law correctly, I am not aware that it has ever been held a sufficient cause for reversing the judgment. And though erroneous, it would, as it, seems, not be deemed sufficient to reverse. Hunter v. Jones, 6 Rand. 541. But the instruction was not of this character; for there was evidence in the case which might involve the question as to the nature of the acts which would amount to an adversary possession. And whatever doubts may formerly have been entertained as to the correctness of the doctrine which it asserts, it must now be regarded as settled in Virginia by the cases of Taylor v. Burnsides, 1 Gratt. 165, and Overton v. Davisson, Ibid. 211. The authority of these cases upon the points decided by the court, has been, I believe, universally acquiesced in by the profession, and I deem it unnecessary to do more than simply to refer to them: They will'be found fully to cover the instruction in all its breadth ; and indeed the language in which it is expressed would seem to have been adopted from the judgment of the court in Overton v. Davisson. If it be .said that “the acts of ownership” effecting a change in their condition which shall constitute an adversary possession of lands uncleared and *in a state of nature, and the character and extent of this change are not defined or explained, the answer is that the court has conformed to the ruling of this court in the case before referred to, and was not asked to give such definition or explanation. This will perhaps constitute the subject of consideration upon some future occasion. In this case I do not deem it necessary or proper to do more than simply to allude to it.

I think the motion for a new trial was properly overruled. The contest in the case turned upon the statute of limitations : and to make out the defense it was neces*216sary for the tenant to carry back the possession of those under whom he claimed to July 1779. There was no proof of possession of any part of the lands covered by the inclusive patent prior to the year 1800; nor was there proof of any actual possession or entry upon the disputed portion prior to the year 1812. In the view I have taken of the case, there was no disseizin of the demandants’ ancestor prior to the year last named. But if even the possession of part of the land without the interlock could be regarded as importing adversary possession of the portion within, and thus working a disseizin, still the evidence fails to carry it back far enough to complete the bar. From the possession in 1800 no inference can legitimately be drawn that the same party had had possession for the previous year. Nor do the circumstances referred to, the making the inclusive survey, obtaining the patent thereon, probable notice of those proceedings to the demandants’ ancestor, &c., &c., constitute any proof of such possession as is necessary to work a disseizin. They tend to make out rather a case of adverse claim than one of adversary possession ; and they fall within the influence of the rules in Taylor v. Burnsides and Overton v. Davisson. Nor do they raise, in connection with the possession in 1800, any necessary presumption of previous possession, *because they are all entirely consistent with the hypothesis that the possession had its commencement in the year first spoken of by the witness.

As to the supposed misunderstanding of the instructions by some of the jury: I will remark that while affidavits of jurors will general^' be received in support of their verdict, they will not readily be received to invalidate it. The cases in the books upon this subject are numerous; and it is true in the multitude of decisions there will appear to be some contrariety; and quite a number of cases are to be found in which such affidavits have been received for the purpose of impeaching verdicts, and new trials have been sometimes granted. But the leaning of the courts of most approyed authority is against the practice of grounding such motions upon them ; and a disposition has been manifested greatly to restrict the class of cases in which, upon such affidavits, new trials will be allowed. In the case of Harnsberger v. Kinney, 6 Gratt. 287, Judge Allen, delivering the opinion of the court, states strongly the reasons founded on principles of public policy for discouraging a resort to evidence of this character. It was a case in which a hew trial was asked for on the ground that the instruction of the court had been misunderstood by some of the jury. The Circuit court had set aside the verdict and granted the new trial; and this court reversed the judgment of,the Circuit court, and proceeded to render judgment on the verdict. I should therefore feel very reluctant to entertain a motion for a new trial, upon the ground that some of the jurors, as disclosed b3r their own affidavits, had misunderstood the instructions of the court in a case in which the court before which the trial was had, had refused to set aside the verdict as contrary to evidence, and in which, so far as this court could see, full justice had been done.

But in truth, were it not for the statement in the *bill of exceptions, that the judge himself, if he had been a juror, would have carried the possession back to the date of the inclusive survey, and have found for the tenant, I should have thought there was no ground whatever for imputing any such mistake or misunderstanding of the instruction as is supposed. From the terms in which it is expressed, the Circuit court was of opinion the tenant must show actual possession of part at least of the land within the interlock, as contra-distinguished from such possession as he would have acquired if there had been no conflict of boundaries, by taking such possession of part of the land without, and that it must have been held adversely for thirty years prior to the institution of the suit. The proof is clear that he had no actual possession by occupancy or enjo3'ment of any part within the interlock prior to the year 1812; and there could be no doubt, therefore, if such a possession was required to be proved, that he had fathed to make out a bar under the statute. Such an interpretation might very well, I think, be given to the instructions, and they are complained of here because such was their meaning; and I feel some little difficulty in reconciling it with the statement above referred to. But however this be, the instructions, as understood by the three jurors referred to, in my view propounded the law in substance correctly; and I think there is not the slightest ground for disturbing the verdict because of any supposed mistake or misapprehension as to what was really the law of the subject.

There remains to be considered but one other question, and that is as to the effect of the imperfect description of the land in the count, and the variance between it and the verdict as to quantity and boundaries. And on my first examination, I felt some difficulty on this point. Further reflection, however, has served to remove it. The form of the count in a writ *of right under the act of 1819, as prescribed in the act, requires the boundaries of the land to be stated. The count filed attempts to set them out, but those given do not make a diagram that will close, an open line or lines being left between the end of the course S. 80 W. 52 poles, and the beginning corner. But no objection was made for this defect, by demurrer or otherwise; the usual plea was filed and the issue joined on the mere right; and the jury have found a verdict precisely describing the tenement demanded b3r its exact quantity and specific boundaries. By this means the defect is cured. Turberville v. Long, 3 Hen. and Munf. 309; Lovell v. Arnold, 2 Munf. 167; Bolling v. Mayor of Petersburg, 3 Rand. 563. It is true the verdict describes *217the land as bounded by seven lines while in the count the number of lines is eight, and no one of the lines named in the former coincides with any one of those given in the latter; and the quantity of land found by the jury is twenty-three acres, one rood and twenty-six poles, while that demanded in the count is twenty acres. But these things are only matters of description; and the jury having found the tenement described by them in their verdict, to be the same tenement mentioned in the count, we have to suppose that the description given in the count is a mistaken one; and that the demandants have recovered the precise tenement demanded in the count, though by a different and corrected description.

Upon the whole case, I am of opinion to affirm the judgment.

The other judges concurred in the opinion of Lee, J.

Judgment affirmed.